Angle v. Sacks

• Decision Date: 28 August 1967
• Docket Number: No. 9415.,9415.
• Parties: George A. ANGLE, d/b/a Kansas Refined Helium Company, Appellant, v. Martin SACKS, Regional Director of the Seventeenth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

382 F.2d 655 (1967)

George A. ANGLE, d/b/a Kansas Refined Helium Company, Appellant, v. Martin SACKS, Regional Director of the Seventeenth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Appellee.

No. 9415.

United States Court of Appeals Tenth Circuit.

August 28, 1967.

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Marvin J. Martin, Wichita, Kan. (John B. Wooley, and W. Stanley Churchill, Wichita, Kan., on the brief), for appellant.

Julius G. Serot, Asst. General Counsel, N. L. R. B., Washington, D. C. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marvin Roth, Atty., N. L. R. B., Washington, D. C., on the brief), for appellee.

Before JONES^*, SETH and HICKEY, Circuit Judges.

SETH, Circuit Judge.

The appellant, doing business as the Kansas Refined Helium Company, appeals from a temporary injunction granted by the District Court pursuant to section 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j).

The chronology of events leading to the temporary injunction may be summarized as follows: In the summer of 1966, the appellant, hereinafter referred to as the employer, had approximately twenty production and maintenance employees at his liquid helium plant near Otis, Kansas. In June 1966, certain employees contacted a union representative, and a campaign to organize the employees was commenced. In early July 1966, the union petitioned the National Labor Relations Board for a representation election, and in August a hearing was held on the union's petition. Also in the latter part of August, during separate interviews with two employees, the employer inquired regarding union activity, expressed his displeasure with the union, and indicated that union "malcontents" and "agitators" would be discharged.

An election was ordered, but the Regional Director, appellee herein, found that "senior operators" in the plant were supervisors and were not eligible to vote. On September 2, 1966, the union sought review by the Board of the Regional Director's ruling that the senior operators were supervisors.

Thereafter, on September 13, the employer started private interviews with each employee. At the hearing on the petition for a temporary injunction pursuant to section 10(j) of the Act, the employer claimed that the private employee interviews were undertaken to identify the employees responsible for dissension in the plant. The existence of such dissension had been revealed in three anonymous letters received by the employer during the summer. The employer stated that the representation election, then scheduled for September 28, was "entirely trivial and secondary to the problem" of dissension and unrest in the plant. The testimony of former employees so interviewed indicates that the employer considered the union a "threat" to the helium plant; that he inquired whether the employees had signed union cards and how they planned to vote; that he would discharge any employee who was not "100 per cent" for the employer, and that "there wouldn't be anyone left to vote for the union" and he would never bargain with the union "in three thousand years."

On September 20, the union and the employer received a telegram from the Board advising that the Regional Director's ruling on the supervisory status of the senior operators was amended to permit the senior operators to vote in the forthcoming election, subject to challenge, because the supervisory issue could best be resolved by the challenge procedure. On the same day, September 20, six employees were discharged by the employer, while the remaining employees were given a wage increase. On the next day, September 21, the Regional Director informed the employer that the union had filed charges of unfair labor practices, and that the representation election scheduled for September 28 was postponed indefinitely because of the employer's conduct.

Thereafter, the Board issued a complaint against the employer, alleging violations of sections 8(a) (1) and (3) of the Act. On December 22, 1966, the Regional Director filed a petition for a temporary injunction pursuant to section 10 (j). An adversary hearing on appellee's petition was held in January 1967, and the District Court ordered a temporary injunction on April 5, 1967.

The District Court enjoined the employer from interfering with, restraining, or coercing employees in the exercise of rights guaranteed by section 7 of the Act. The court ordered the employer to reinstate the six employees discharged on September 20, pending a final determination of the issues by the Board, and ordered the employer to tender sufficient transportation costs to permit the six employees and their families to return to work. The court's order does not require payment of backpay, nor did the Board seek backpay. The employer's motion to stay the temporary injunction pending appeal was denied by the District Court on April 24, 1967. We are unable to determine from the record before us whether any of the six discharged employees has accepted reinstatement. The District Court determined that the "* * * clearly foreseeable result of the interrogations, the discharges, and wage increases to the remaining employees was to destroy any employee interest in union representation. Reasonable cause to believe that unfair labor practices have been committed clearly exists."

Although the evidence was contradictory, the record contains substantial evidence to support the court's finding that there existed a reasonable cause to believe that unfair labor practices had occurred, and we cannot say that the court's finding is clearly erroneous, or an abuse of discretion occurred in granting the injunction. See Johnston v. J. P. Stevens & Co., 341 F.2d 891 (4th Cir.). A finding of such reasonable cause is an implicit prerequisite for relief under section 10(j). See McLeod v. Compressed Air, Etc. Workers, 292 F.2d 358 (2d Cir.); Note, 45 Texas L.Rev. 358, 360 n. 12 (1966), and cases cited therein. We have heretofore considered section 10(l) cases in Lawrence Typographical Union v. Sperry, 356 F.2d 58 (10th Cir.), and in United Brotherhood of Carpenters v. Sperry, 170 F.2d 863 (10th Cir.).

The appellant argues that a petition for section 10(j) relief should be filed only in rare emergency situations, and that the Board abused its discretion by seeking section 10(j) relief in the case at bar because the circumstances did not disclose an emergency situation then existing or likely to exist before the issues in controversy could be decided by the Board. Appellant also asserts that the District Court granted relief on the sole basis of reasonable cause to believe that unfair labor practices had occurred, thus failing to establish additional standards or guidelines for granting relief under section 10(j).

The statute¹ provides only that the court may grant relief it deems "just and proper" upon filing of a petition by the Board and notice to the respondent. Appellant's contention that the Board's discretion in seeking section 10(j) relief should be limited to rare emergencies is derived from statements of the Board or its personnel shortly after section 10(j) was enacted in 1947. For example, in 1947, General Counsel Denham of the Board said: "I believe it was intended that that section 10(j) should be used with almost the same restraint that applies to the use of the national emergency injunctions. In other words, the problem has to be a widespread one; it has to be one that has heavy and meaningful repercussions." 24 LRRM 45. However, in view of the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115, which deprived federal courts of jurisdiction to issue injunctions in labor disputes, congressional restoration of jurisdiction to order temporary injunctive relief under section 10 (j) should be regarded by the courts as a legislative response designed to reach particular situations. See the 1962 remarks of Chairman McCulloch of the Board, cited in McLeod v. General Electric Co., 366 F.2d 847 (2d Cir.). Relief under section 10(j) may be sought against employers and unions alike.

We find nothing in the legislative history of section 10(j) declaring or suggesting that the Board's discretion in seeking section 10(j) relief should be limited to those emergencies endangering the national welfare, or to situations with "heavy and meaningful repercussions," or to situations that have a demonstrably prejudicial impact on the public. The concern of Congress was rather that the purposes of the National Labor Relations Act could be defeated in particular cases by the passage of time:

"* * * the relatively slow procedure of the Board hearing and order, followed many months later by an enforcing decree of the circuit court of appeals, falls short of achieving the desired objectives — the prompt elimination of the obstructions to the free flow of commerce and encouragement of the practice and procedure of free and private collective bargaining. Hence we have provided that the Board, acting in the public interest and not in vindication of purely private rights, may seek injunctive relief in the case of all types of unfair labor practices. * * *

* * * * * *

"Experience * * * has demonstrated that * * * the Board has not been able in some instances to correct unfair labor practices until after substantial injury has been done. * * * Since the Board\'s orders are not self-enforcing, it has sometimes been possible for persons violating the act to accomplish their unlawful objective before being placed under any legal restraint and thereby to make it impossible or not feasible to restore or preserve the status quo pending litigation. Emphasis added.

"In subsection (j) * * * the Board is given additional authority to seek injunctive relief. * * *

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