Pascarell v. New York Shipping Ass'n, Inc.

Decision Date20 May 1981
Docket NumberAFL-CIO and A,AFL-CIO and W,AFL-CI,A,AFL-CIO,No. 81-1308,81-1308
Citation650 F.2d 19
Parties107 L.R.R.M. (BNA) 2426, 91 Lab.Cas. P 12,769 William A. PASCARELL, Acting Regional Director of the Twenty-Second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, v. NEW YORK SHIPPING ASSOCIATION, INC., Council of North Atlantic Shipping Associations, International Longshoremen's Association,tlantic Coast District, International Longshoremen's Association,est Gulf Maritime Association, Southeast Florida Employers' Association, Mobile Steamship Association, Inc. and the South Atlantic and Gulf Coast District International Longshoremen's Association,New York Shipping Association, Inc., Council of North Atlantic Shipping Associations, International Longshoremen's Association, and Atlantic Coast District, International Longshoremen's Association,ppellants.
CourtU.S. Court of Appeals — Third Circuit

C. P. Lambos (argued), Donato Caruso, Lorenz, Finn, Giardino & Lambos, New York City, for New York Shipping Association, Inc.

Thomas W. Gleason, (argued), Ernest L. Matthews, Jr., New York City, for International Longshoremen's Association, AFL-CIO and Atlantic Coast District, International Longshoremen's Association, AFL-CIO.

Francis A. Scanlan, Deasey, Scanlan & Bender, Ltd., Philadelphia, Pa., for Council of North Atlantic Shipping Associations.

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, James Holcomb (argued), Atty., N. L. R. B., Washington, D. C.

J. Alan Lips, (argued), Mark S. Sauter, Thomas R. Schuck, Taft, Stettinius & Hollister, Cincinnati, Ohio, (Nelson J. Cooney, Alan J. Thiemann, American Trucking Associations, Inc., Washington, D. C., of counsel), S. Joseph Fortunato, Pitney, Hardin & Kipp, Morristown, N. J., for American Trucking Associations, Inc.

Raymond P. deMember, Garson, deMember & Weiner, Fairfax, Va., Martin Schneiderman, Felice Busto, Steptoe & Johnson, Washington, D. C., for International Association of NVOCCS and Twin Express, Inc.

Before SEITZ, Chief Judge, and ALDISERT and GIBBONS, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

The New York Shipping Association, Inc. (NYSA), the International Longshoremen's Association, AFL-CIO (ILA), and others, appeal from a preliminary injunction issued pursuant to Section 10(l ) of the National Labor Relations Act, 29 U.S.C. § 160(l ), on a petition brought by William A. Pascarell, Acting Regional Director, on behalf of the National Labor Relations Board (the Board). The injunction prohibits the defendants from implementing certain provisions of a collective bargaining agreement between NYSA and ILA pending resolution of charges before the Board that those provisions, the Rules on Containers, violate Section 8(b)(4)(ii)(B) of the Labor Management Relations Act, 29 U.S.C. § 158(b)(4)(ii)(B). Prior stages of this ongoing dispute are set out in NLRB v. International Longshoremen's Ass'n, 447 U.S. 490, 100 S.Ct. 2305, 65 L.Ed.2d 289 (1980); Consolidated Express Inc. v. New York Shipping Ass'n, Inc., 641 F.2d 90 (3d Cir. 1981), mandamus and prohibition denied, In re International Longshoremen's Association, -- U.S. --, 101 S.Ct. 2008, 68 L.Ed.2d 318 (1981); Consolidated Express, Inc. v. New York Shipping Ass'n, 602 F.2d 494 (3d Cir. 1979), vacated and remanded, 448 U.S. 902, 100 S.Ct. 3040, 65 L.Ed.2d 1131 (1980); Balicer v. International Longshoremen's Ass'n, 364 F.Supp. 205 (D.N.J.), aff'd mem., 491 F.2d 748 (3d Cir. 1973). In the Balicer case the Regional Director on behalf of the Board obtained a Section 10(l ) injunction preventing the operation of the Rules on Containers pending resolution of unfair labor practice charges pending before the Board. Since the charges involved alleged violations of Section 8(b)(4) that application was, under Section 10(l ), mandatory. Compare Section 10(j), 29 U.S.C. § 160(j). A preliminary injunction issued, and thus from 1973 to date the Rules on Containers were never operative. The Board in a number of cases held that the Rules on Containers did in fact violate Section 8(b)(4). The effect of those decisions was to prevent implementation of the Rules. On June 20, 1980, however, the Supreme Court held that in deciding the Section 8(b)(4) charges the Board had applied on incorrect legal standard, and remanded for further consideration. N.L.R.B. v. International Longshoremen's Ass'n, supra.

The status quo from 1973 through 1980 was that the Rules on Containers were inoperative. This permitted continued operation of the businesses of certain freight consolidators who employed teamsters rather than longshoremen. Late in 1980, NYSA and ILA agreed to institute implementation of the Rules beginning January 2, 1981. Meanwhile, pursuant to the Supreme Court's mandate, the Board conducted an investigation of the Section 8(b)(4) charges in light of the Court's opinion, and concluded that complaints should be processed. That conclusion triggered the mandatory Section 10(l ) duty to petition for injunctive relief pending the Board's final adjudication. By the time the district court considered that petition it was clear that the defendants intended to implement the Rules. Such implementation would drastically alter the status which prevailed from 1973 through 1980, by depriving the freight consolidators and their employees of business they had enjoyed for years. The district court issued a Section 10(l ) injunction prohibiting implementation of the Rules pending the Board's decision on the pending charges. This appeal followed. Several objections to the district court order are advanced, none of which are meritorious.

First NYSA and ILA contend that the district court should not have entertained a Section 10(l ) application, but should have referred the Board to the Court of Appeals from which the pending unfair labor practice cases were remanded for consideration of pendente lite relief. We reject that contention because it is plainly inconsistent with the structure of the Act. Authority of Courts of Appeals to enforce the prohibitions against unfair labor practices depends on 28 U.S.C. § 2112 and Section 10(e) of the Act, 29 U.S.C. § 160. Those statutes provide for enforcement of...

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