Evening star. [volume] (Washington, D.C.) 1854-1972, 1948-02-08
US. Judge Norrows Scope
OfSeeondory Boycott Ban
Federal Court in New York Refuses
Injunction in Picketins Case
BY Gerard d. Reilly

Federal Court IN New York Refuses
Injunction in Picketing Case
BY Gerard d. Reilly
If there was one thing which Congress was
credited with accomplishing in the passage Of
the Taft Hartley Labor Management Relations
Act 1t was the outlawing of the secondary boy
| colt strike. This is the practice INDUCED in
| by some unions of extending the area of eco
| nomic warfare to employers not involved in
| any dispute with their own workers or their
representatives, as a means of putting pressure
| on some other company whose employees are on
| strike.
| Lawyers therefore were somewhat startled
| last week by an opinion Of Federal district
| judge in New York rejecting an application to
| restrain mass picketing by CLIO union of a
firm known as Project Engineering Co. in
furtherance of a strike called by the union
against another concern, Ebasco Services, Inc,
because the latter company would not agree to
certsin union demands.
The opinion was written by Judge Simon
Rifkind, a former law partner of Senator Wag
ner Because of his clarity of expression and
general familiarity with social legislation, he
is regarded as one of the most able recent APP
pointees to the Federal bench In New York City.
In this instance, however. his decision has been
criticized as unduly narrowing the scope of the
new statute and thereby failing to give full
effect to the intent of Congress
The case which reached his court began with
a labor dispute last october over purely eco
nomic issues. Ebasco, the primary employer
involved, supplies engineering services to con-
struction companies and public utilities. In
that connection 1t employs large staff of
craftsmen who were organized few years ago
by the United Office and Professional Workers,
CLIO, which entered into collective bargaining
contract with the company. When the con-
tract expired last fall Ebasco and the union
reached an impasse in their negotiations and a
strike started
Several months previously Project Engineer
ing, which also was engaged in industrial design
ing, received number of orders from Ebasco.
When the strike was called, Ebasco in order to
fulfill its own contracts with its customers sent
a considerable volume of additional work to
Project Engineering. This aroused the ire Of
the striking union and picket line was thrown
around the entrance to the Project Engineering
Offices On three occasions IS or more men
were in the picket line and blocked the en-
tranceway to the building. The pickets pushed
and kicked the employees trying to get into the
Ebasco Offices and greeted them with such
epithets as "scab," "louse" and rat" AS q
result several craftsmen quit their employment.
Project Engineering Co. then filed a
charge with the regional Office of the National
Labor Relations Board which alleged that the
union had violated Section Sob a. of the act
which, among other things, makes it an I'M
fair labor practice for a labor organization Ito
encourage = employees of any employer to
engage in concerted refusal " to
perform any services where an object thereof
is forcing or requiring any employer = to
cease doing business with any other person"
The theory of the charge was that the union
which was striking at Ebasco was by its picket
ing tactics encouraging the employees of Prof.
ect Engineering to refuse to perform services
in order to require their employer to cease do
ing business with the Ebasco concern.
Under this subsection of the amended Labor
Relations Act it is mandatory for the general
counsels Office If the preliminary investigation
shows that the facts alleged in the charges
were true, to seek temporary injunction in
Federal district court pending a final decision
by the board with respect to the controversy
After the New York Office had reported the
matter Regional Director Charles E. Dowds
was directed to apply for relief against the
boycotting union, and the case was thereupon
docketed in Judge Rifkinds court.
Although it seemed apparent that the con-
duct Of the union fell within the literal pro-
hibition of the statute, Judge Rifkind denied
any injunctive relief. He relied in part upon
the fact that the legislative history indicated
that the sponsors of the bill in writing this
section had in mind secondary boycott From
this premise he reasoned that all that Congress
had meant to do in enacting this section was
to protect neutral" employers.
The Project Engineering Co., he de-
clared, was not neutral, since by accepting
additional work from the struck-bound firm 1t
| had become an ally rather than bystander.
| This reasoning is far from conclusive, however.
| since it was the function of the court to apply
| the language of the statute rather than to de-
| fine the term secondary boycott" which does
| not appear in the legislation at all. Moreover,
| any company which manufactures or delivers
| goods destined to an employer whose opera
| lions have been crippled by strike may be
viewed consciously or unconsciously aiding
such an employer in breaking the strike What
the sponsors of the bill obviously meant, how
ever, in referring to third parties aggrieved by
secondary boycotts as neutrals was that they
had no financial interest in the merits or the
dispute in which their customer or supplier
was engaged.
Judge Rl1Klnd also rested MS conclusion upon
the ground that to construe the statute broadly
enough to have given relief to Project En-
cheering would have raised serious question
of consttutionality. Undoubtedly he was
thinking of some of the Supreme Court hold
ings to the effect that picketing is an aspect
of free speech and Is therefore protected by
the first amendment This doctrine was first
developed, however, with respect to picket
lines which were merely established for the
purpose of dissuading customers from patroniz-
ing unfair" firms. 1t has nothing to do with
mass picketing intended to intimidate workers
who are trying to enter their place of employ
ment. A majority of the Supreme Court in
the Meadowmoor Dairy case held that If there