Sears, Roebuck & Co. v. Carpet, etc., Local Union No. 419

• Decision Date: 15 May 1969
• Docket Number: No. 6-69.,6-69.
• Citation: 410 F.2d 1148
• Parties: SEARS, ROEBUCK AND CO., Charging Party and Complainant before the National Labor Relations Board, Appellant, v. CARPET, LINOLEUM, SOFT TILE AND RESILIENT FLOOR COVERING LAYERS, LOCAL UNION NO. 419, AFL-CIO, Respondent-Appellee, Clyde F. Waers, Regional Director of the Twenty-Seventh Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

410 F.2d 1148 (1969)

SEARS, ROEBUCK AND CO., Charging Party and Complainant before the National Labor Relations Board, Appellant, v. CARPET, LINOLEUM, SOFT TILE AND RESILIENT FLOOR COVERING LAYERS, LOCAL UNION NO. 419, AFL-CIO, Respondent-Appellee Clyde F. Waers, Regional Director of the Twenty-Seventh Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellee.

No. 6-69.

United States Court of Appeals Tenth Circuit.

May 15, 1969.

Gerard C. Smetana, Chicago, Ill. (Donald L. Giacomini, Denver, Colo., and Kalvin M. Grove, Chicago, Ill., on the brief), for appellant.

Philip Hornbein, Jr., Denver, Colo., for respondent-appellee.

Julius G. Serot, Asst. Gen. Counsel, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, and Marvin Roth, Atty., Washington, D. C., on the brief), for petitioner-appellee.

Before MURRAH, Chief Judge, and LEWIS and HILL, Circuit Judges.

HILL, Circuit Judge.

This is an appeal by Sears, Roebuck and Company, the charging party and complainant before the N.L.R.B., from an order of the district court dismissing the petition of the Regional Director for a preliminary injunction under section 10(l) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(l). The Regional Director did not appeal from the denial of the injunction and asserts that consequently this court does not have jurisdiction to consider the merits of the matter because Sears lacks the necessary standing to prosecute this appeal.

Sears originally filed a charge with the Board alleging that the Carpet, Linoleum, Soft Tile and Resilient Floor Covering Layers, Local Union No. 419, AFL-CIO, was picketing Sears in furtherance of a dispute with Joe and Eddie's Carpet Service, a firm employed to install floor coverings sold by Sears. After investigating the charge, the Regional Director concluded that there was reasonable cause to believe that the Union was engaged in picketing in violation of section 8(b) (4) (i) (ii) (B) of the Act, and that a Board complaint based on that charge should be issued. Pursuant to the mandate of § 10(l), the Regional Director then filed a petition for an injunction with the district court pending final disposition of the complaint before the Board. As the charging party, Sears was notified, in accordance with the provisions of § 10(l), of the filing of the petition and the time and place of the hearing to be held by the district court. At that hearing the party litigants, the Board and the Union, presented evidence to support their contrary positions on the unlawful picketing issue underlying the Board's quest for an injunction. Sears put in an official appearance but did not participate in any meaningful fashion. The court considered the various contentions of the parties and concluded that the Board had failed to sustain a case for injunctive relief. The Regional Director decided to accept the judgment of the court but Sears disagreed and instituted this appeal.

The Board takes the position that Sears was not a party to the § 10(l) court proceeding and cannot appeal therefrom. This is said to follow from the fact that § 10(l) merely provides that the charging party "shall be given an opportunity to appear by counsel and present any relevant testimony." It is argued that to expand that grant of limited participation into a full scale right to appeal when the Board declines to do so, would be not only to ignore the plain meaning of the statutory language, but would constitute a total disregard for the overall scheme of labor injunction treatment embodied in the N.L.R.A. and the Norris-La Guardia Act.

Sears counters by stressing that § 10(l) is an exception to the general prohibition against labor injunctions, which to be fully understood requires that a distinction be made between "institution" of an injunction proceeding and "subsequent acts in support thereof." Sears claims that Norris-La Guardia is concerned only with the institution of such petitions and that once the Board has filed the petition pursuant to § 10(l),¹ Norris-La Guardia no longer operates as a barrier. Thus § 10(l) should be interpreted as granting charging parties all the rights of full juridical parties, including the right to appeal. We cannot agree and must conclude that Sears lacks the necessary standing to undertake this appeal.

It is not necessary to repeat the history of abuses that prompted the Norris-La Guardia Act, nor to belabor the public policy formulated therein. The language of that Act clearly indicated that "Congress was intent upon taking the federal courts out of the labor injunction business * * *." Marine Cooks & Stewards A.F.L. v. Panama S. S. Co., 362 U.S. 365, 369, 80 S.Ct. 779, 783, 4 L.Ed.2d 797 (1960). Accordingly, when an exception to that Act, such as is here involved, is relied upon to support the jurisdiction of the court, the language employed to articulate that exception will not be given any more expansive an interpretation than is clearly warranted.² Viewed in that context, the limited rights conferred upon a charging party in a § 10(l) proceeding, the right "to appear by counsel and present any relevant testimony," must be taken to mean just that, no more and no less. To read into that restricted right of participation, the right to initiate appeals, a right traditionally available only to full party litigants, would not only violate every sound principle of statutory construction, but would require a complete disregard for the sensitivity of the labor injunction problem.

Section 10(l), and its counterpart § 10(j), were designed to provide temporary injunctive relief pending the final adjudication of the Board. The temporary relief is allowed only upon the filing of a petition by the Regional Director. It is his view of the facts and law that the district court is to consider. "The courts are not free to roam at will over every aspect of a labor dispute upon the request of the charging party. * * * The principal role in these proceedings is to be played by the Regional Director acting in the public interest, and while the charging party is free to aid him in the course of the litigation, the charging party may not substitute itself as the principal complainant." McLeod for and on Behalf of NLRB v. Business Machine & Office App. Mech. Conf. Bd., 300 F.2d 237, 243 (2d Cir.1962). When the Board declines to appeal an adverse district court decision,...