Kaynard For and on Behalf of N.L.R.B. v. Mego Corp.

Decision Date12 September 1980
Docket NumberD,I,No. 807,Nos. 1177,1178,807,s. 1177
Parties105 L.R.R.M. (BNA) 2723, 89 Lab.Cas. P 12,292 Samuel M. KAYNARD, Regional Director of the Twenty-ninth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellee, v. MEGO CORP. and Samet & Wells, Inc. and Local Unionnternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondents-Appellants. ockets 80-6038, 80-6060.
CourtU.S. Court of Appeals — Second Circuit

Thomas Sheehan, Mineola, N. Y. (Murphy & Sheehan, Mineola, N.Y.), for respondents-appellants Mego Corp. and Samet & Wells, Inc.

J. Warren Mangan, Long Island City, N. Y. (O'Connor, Quinlan & Mangan, P. C., Long Island City, N. Y.), for respondent-appellant Local 807.

Genevieve Pluhowski, N. L. R. B., Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Harold J. Datz, Associate Gen. Counsel, Joseph E. Mayer, Asst. Gen. Counsel, Joseph P. Norelli, Deputy Asst. Gen. Counsel, N. L. R. B., Washington, D. C.), for petitioner-appellee National Labor Relations Board.

Before FRIENDLY and MANSFIELD, Circuit Judges. *

FRIENDLY, Circuit Judge:

Mego Corporation (Mego) 1 and Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 807), appeal from an order of the District Court for the Eastern District of New York, 484 F.Supp. 167 (1980), which granted a temporary injunction pursuant to section 10(j) of the National Labor Relations Act (the Act), 29 U.S.C. § 160(j). 2 The order enjoined Mego from recognizing Local 807 as the collective bargaining representative of the employees at Mego's Brentwood, N. Y. plant and restrained both Mego and Local 807 from applying a previously negotiated collective bargaining agreement to the Brentwood employees pending disposition of a related complaint before the National Labor Relations Board.

The significant facts are not in dispute: Mego is a toy manufacturer headquartered in Manhattan, with centralized payroll processing and purchasing. Prior to 1979, its manufacturing plants were located solely in Bohemia, N. Y., where about 160 warehousemen and production and maintenance workers were employed. In 1976, Local 807 became the exclusive bargaining agent for those employees and negotiated a collective bargaining agreement set to expire on June 30, 1979. The agreement contained an "accretion clause" purporting to include in the bargaining unit and to subject to the terms of the agreement any new employees to be hired in a new department or at a new location.

In April, 1979, Mego opened a new plant in Brentwood, N. Y., approximately ten miles from the Bohemia site. Relying on the accretion clause, Local 807 demanded recognition as representative of the Brentwood employees, and Mego eventually complied on May 21. On June 27, however, as negotiations for a successor agreement between Mego and Local 807 were drawing to a close, the Brentwood workers-who were not apprised of Local 807's aspirations-staged a walkout to protest low wages, safety conditions in the plant, and their apparent lack of union representation. In response to a call from one of the strikers, representatives of Local 101, International Brotherhood of Craftsmen, Professionals and Allied Trades (Local 101), quickly arrived on the scene, and before the end of the day collected fifty union authorization cards from the eighty Brentwood employees. In contrast, a representative of Local 807 who attempted to address the strikers was rebuffed when the Brentwood employees expressed their anger at being "represented" by Local 807 without their knowledge or participation. 3 When Local 101 requested recognition as the exclusive representative of the Brentwood employees, the company refused, relying on its contract with Local 807.

On the third day of the strike Mego and Local 807 concluded negotiations for a new agreement, to be effective from July 1, 1979 until June 30, 1982. The agreement, containing language expressly extending its coverage to the Brentwood employees, was ratified the same day at a meeting of Local 807 in which only a handful of the Brentwood employees participated.

During the strike, the employer threatened to discharge those employees who failed to return to work. This threat was never carried out, however, and the strike ended two weeks after it began when the strikers reported for duty and were reinstated to their former positions.

Throughout this period and afterwards, Mego and Local 807 insisted that the Brentwood employees were included in the preexisting bargaining unit and were covered by the successive collective bargaining agreements. Despite complaints by the employees, representatives of Local 807 visited the Brentwood plant several times to distribute literature and to talk to the employees, and used these occasions to deride the efforts of Local 101 during the strike. Local 101 was denied similar access and protested this disparity without effect. In September, 1979, Local 807 requested, pursuant to the new agreement's union security clause, that Mego discharge all Brentwood employees who had worked for more than thirty days without joining Local 807. Fearful of possible legal repercussions, Mego refused to comply.

In response to unfair labor practice charges filed by Local 101, the Regional Director in August, 1979, issued complaints 4 alleging that Mego had violated sections 8(a)(1), (2) and (3) of the Act, 29 U.S.C. §§ 158(a)(1), (2) and (3), 5 and that Local 807 had violated sections 8(b)(1)(A) and 8(b)(2) of the Act, 29 U.S.C. §§ 158(b)(1)(A) and (2), 6 by imposing their collective bargaining agreements on the Brentwood employees when Local 807 did not represent a majority of those workers. In September, 1979, Local 101 filed an election petition with the Regional Director, specifically requesting that he proceed with the election. Denying Local 101's request, the Regional Director, pursuant to section 10(j), see note 2 supra, petitioned the district court for a temporary injunction against Mego's recognizing Local 807 as representative of the Brentwood employees or applying the June 29, 1979 agreement pending final determination of the NLRB proceedings, and for related relief. In February, 1980, after evidence had been taken and while the parties were awaiting the district court's decision, Local 101 requested that all charges pending against Mego and Local 807 be dropped so that an election could be held immediately, but the Regional Director denied this. On February 9, 1980, the district court announced its decision and order which, together with a supplemental order issued on March 3, 1980, granted the injunctive relief sought by the Regional Director. Although the district court's order enjoined the appellants from otherwise applying their collective bargaining agreement to the Brentwood employees, it provided that the wage increases negotiated by Local 807 in 1979, including increases to become effective on July 1, 1980 and July 1, 1981, should remain in effect.

Our decisions make clear that the task of a district court in a section 10(j) proceeding is two-fold, requiring a determination "whether there is reasonable cause to believe that unfair labor practices have been committed and, if so, whether the requested relief is 'just and proper.' " Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047 at 1051 (2 Cir. 1980); accord, Seeler v. Trading Port, Inc., 517 F.2d 33 (2 Cir. 1975). On appeal, we are bound by the factual findings of the district court unless these are clearly erroneous, but may fully review its conclusions of law, including findings of reasonable cause. The district court's exercise of discretion in deciding whether injunctive relief is just and proper will be upheld unless it has been abused. Danielson v. Joint Board of Coat, Suit and Allied Garment Workers' Union, I.L.G.W.U., 494 F.2d 1230, 1244 n.22 (2 Cir. 1974).

The validity of the unfair labor practice charges brought in this case turns on the legality of the attempted accretion of the Brentwood employees to the preexisting Bohemia bargaining unit. We have described "accretion" as the "process through which the Board has added new employees to an existing group without holding an election". Westinghouse Electric Corp. v. NLRB, 440 F.2d 7, 11 n.3 (2 Cir.), cert. denied, 404 U.S. 853, 92 S.Ct. 93, 30 L.Ed.2d 93 (1971). Because a finding of accretion works to deny the affected employees the opportunity to vote in a representation election, the Board and the courts have given the accretion doctrine a restricted application. Id. at 11; Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352, 1354 (9 Cir. 1970). In the words of Judge Goldberg,

the Board has traditionally been reluctant to find an accretion, even where the resulting unit would be appropriate, in those cases where a smaller unit, consisting solely of the accreted unit, would also be appropriate and the § 7 rights of the accreted employees would be better preserved by denying the accretion.

Boire v. International Brotherhood of Teamsters, 479 F.2d 778, 795 (5 Cir. 1973). Except for this particular reluctance, the factors used by the Board to determine whether an accretion is valid are generally the same as those employed in determining the appropriateness of proposed bargaining units in representation proceedings.

In ruling that reasonable cause did exist to support the Regional Director's allegations of unfair labor practices, the district court undertook to weigh a number of factors, including " 'the functional integration of operations; the differences in the types of work and the skills of employees; the extent of centralization of management and supervision, particularly in regard to labor relations, hiring, discipline, and control of day-to-day operations; and the extent of interchange and...

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