517 F.2d 33 (2nd Cir. 1975), 439, Seeler v. Trading Port, Inc.

Docket Nº:439, Docket 74-2150.
Citation:517 F.2d 33
Party Name:Thomas W. SEELER, Regional Director of the Third Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellant, v. The TRADING PORT, INC., Respondent-Appellee.
Case Date:May 27, 1975
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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517 F.2d 33 (2nd Cir. 1975)

Thomas W. SEELER, Regional Director of the Third Region of

the National Labor Relations Board, for and on

behalf of the National Labor Relations

Board, Petitioner-Appellant,


The TRADING PORT, INC., Respondent-Appellee.

No. 439, Docket 74-2150.

United States Court of Appeals, Second Circuit

May 27, 1975

Argued Feb. 13, 1975.

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Charles I. Cohen, Supervisory Atty., N. L. R. B., Washington, D. C. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Gerald Brissman, Associate Gen. Counsel, Marvin Roth, Deputy Asst. Gen. Counsel, Andrew F. Tranovich, Atty., on the brief), for petitioner-appellant.

Edward L. Bookstein, Albany, N. Y. (Kohn, Bookstein & Karp, on the brief, Richard A. Kohn, Albany, N. Y., of counsel), for respondent-appellee.

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Before HAYS and FEINBERG, Circuit Judges, and HOLDEN, District Judge. [*]

HAYS, Circuit Judge:

In this appeal we are asked to decide whether a district court upon an application for a temporary injunction under § 10(j) of the Labor Management Relations Act, 29 U.S.C. § 160(j) (1970), should order an employer, who has engaged in a series of unfair labor practices, to bargain collectively with a union of his employees after the union has lost in an election of representatives. Petitioner, acting on behalf of the National Labor Relations Board, applied to the United States District Court for the Northern District of New York for an order temporarily enjoining the defendant employer from engaging in alleged unfair labor practices under sections 8(a)(1), 8(a)(3), and 8(a)(5) of the Act, 29 U.S.C. § 158(a)(1), (3), and (5) (1970), compelling the defendant to rehire certain workers allegedly laid off in violation of the Act, and requiring the employer to recognize and bargain with Local 294 of the International Brotherhood of Teamsters. Judge Brieant granted petitioner's motion only insofar as it requested an injunction against unfair labor practices under sections 8(a)(1) and 8(a)(3). 1 He held that where no previous bargaining relationship exists and the union has lost in an election of representatives, the district courts under § 10(j) should not order collective bargaining "based merely on (authorization) cards." We reverse.


The Trading Port, Inc., situated in Albany, New York, is engaged in the wholesale and retail grocery business. Prior to the labor dispute which gave rise to these proceedings, the company employed forty-nine warehousemen. On August 29, 1973, nineteen of the employees met with representatives of Teamsters Local 294 at the union hall. All those present signed cards designating the Local as their bargaining representative. Shortly thereafter, cards were distributed to the remaining warehousemen and by September 4, forty-three had signed cards. 2 After being advised by employee James Dillenbeck that a majority had been obtained, union president Nicholas Robilotto met with Isadore Tabachneck, president of Trading Port, and offered to have a neutral third party count the cards and verify the union's majority. Tabachneck refused this offer and also refused to recognize the union. On September 8 a strike vote was held at the union hall and after company officials again refused a neutral card count, a strike began on September 9.

The strike ended on September 29 when the employees voted to return to work and to petition the Board for an election. When the strikers reported for work on October 1, as instructed, they were issued lay-off slips. Ten strikers were subsequently rehired; eleven other employees had returned to work during the strike. On November 1, the company informed approximately twenty of the strikers that they had been permanently laid off.

The NLRB election was held on December 4. Three votes were cast for the union, twenty-five votes were cast against it, and there were nineteen challenged ballots. The union filed objections to the election and a charge of

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unfair labor practices under sections 8(a)(1), 8(a)(3), and 8(a)(5) against the Trading Port. The General Counsel issued a complaint, and the unfair labor practice and representational proceedings were consolidated for a hearing before an administrative law judge. On March 13, 1974, while the hearing was in progress, the Regional Director moved in the district court for a temporary injunction against the respondent.

In the proceedings before Judge Brieant, the parties stipulated that the record of the hearings before the administrative law judge was complete and no other evidence was necessary. 3 That record includes the testimony of numerous Trading Port employees claiming that among other things, the respondent 1) threatened employees with the loss of jobs and other reprisals if they selected the union or went on strike; 2) promised benefits to employees if they abandoned the union; 3) threatened to close its warehouse and to refuse to take back strikers when the strike ended; 4) coercively interrogated employees about how they would vote in the coming election; and 5) discriminated against union supporters in its rehiring practices after the strike and before the election. In its defense respondent offered testimony denying that certain conversations ever took place and explaining that other remarks were made in jest. Respondent defended its hiring procedures on the ground that the strike had caused a genuine contraction of its business and that it chose to rehire based on merit and not seniority, which it claimed had never played a major role in its employment policy in the past.


The district courts may grant temporary injunctive relief under sections 10(j) 4 and 10(l ) 5 of the L.M.R.A. if there is reasonable cause to believe that unfair labor practices have been committed. See, e. g., McLeod v. National Maritime Union, 457 F.2d 1127, 1138 (2d Cir. 1972); International Union, UAW v. N.L.R.B. (Ex-Cell-O Corp.), 145 U.S.App.D.C. 384, 449 F.2d 1046, 1051 (1971); Angle v. Sacks, 382 F.2d 655, 658 (10th Cir. 1967); McLeod v. Local 25, IBEW, 344 F.2d 634, 638 (2d Cir. 1965). In this case, the district court concluded that there was reasonable cause to believe that the respondent had committed unfair labor practices under sections 8(a)(1) and 8(a)(3) of the Act. 6 Although there are

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disputed issues of fact in the case, the Regional Director should be given the benefit of the doubt in a proceeding for § 10(j) relief. See Danielson v. Joint Board of Coat, Suit & Allied Garment Workers Union, 494 F.2d 1230, 1245 (2d Cir. 1974). We therefore affirm the holding of the district court that it had sufficient cause to believe that unfair labor practices had been committed, to warrant granting injunctive relief under § 10(j). 7

After finding "reasonable cause," the district court went on to consider whether the specific relief requested by the Regional Director was "just and proper," as required by the statute. The court decided that it would be proper to enjoin the respondent from engaging further in coercive or discriminatory antiunion conduct. However, Judge Brieant declined to order the respondent to recognize and bargain with Local 294. He held, basing his conclusions primarily on Fuchs v. Steel-Fab, Inc., 356 F.Supp. 385 (D.Mass.1973) and Kaynard v. Lawrence Rigging, Inc., 68 CCH Lab. Cas. P 12,735 (E.D.N.Y.1972), that when a union has never had a bargaining relationship with an employer and has failed to win an election, it is not just and proper for a district court to order bargaining, even though the Board is free to find on the merits that the union's previous card majority coupled with subsequent unfair labor practices by the employer justify such an order. We disagree. 8

In N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 614, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the Supreme Court upheld the use of bargaining orders by the Board in cases in which the union had a card majority at one point but was later confronted with employer unfair labor practices tending "to undermine majority strength and impede the election processes." 9 The Court reasoned that an order to cease and desist from future unfair labor practices would be ineffective:

"The damage will have been done, and perhaps the only fair way to effectuate employee rights is to re-establish the conditions as they existed before the employer's unlawful campaign." 395 U.S. at 612, 89 S.Ct. at 1939.

Just as a cease and desist order without more is ineffective as final relief in a Gissel situation, it is, in certain cases, also insufficient as interim relief. If an employer faced with a union demand for recognition based on a card majority may engage in an extensive campaign of serious and pervasive unfair labor practices, resulting in the union's

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losing an election, and is then merely enjoined from repeating those already successful violations until final Board action is taken, the Board's adjudicatory machinery may well be rendered totally ineffective. A final Board decision ordering a new election will leave the union disadvantaged by the same unfair labor practices which caused it to lose the first election. Even if the Board finally orders bargaining, probably close to two years after the union first demanded recognition, 10 the union's position in the plant may have already deteriorated to such a degree that effective representation is no longer possible. Only if the district courts may issue interim bargaining orders can the union's viability be maintained to the degree necessary to make final Board adjudication in the form of an election or a bargaining order meaningful. As the Senate Report stated in regard to the need for § 10(j):

"Time is usually of the essence in these matters, and consequently the relatively slow procedure of Board hearing and order, followed many months later by an enforcing decree of the circuit court of appeals, falls short of achieving the...

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