Retail Wholesale & Dept. Store Union, AFL-CIO v. Rains

• Decision Date: 30 April 1959
• Docket Number: No. 17632.,17632.
• Parties: RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO, et al., Appellants, v. William J. RAINS, Acting Regional Director of The Tenth Region of The National Labor Relations Board, For and On Behalf of The National Labor Relations Board, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

266 F.2d 503 (1959)

RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO, et al., Appellants, v. William J. RAINS, Acting Regional Director of The Tenth Region of The National Labor Relations Board, For and On Behalf of The National Labor Relations Board, Appellee.

No. 17632.

United States Court of Appeals Fifth Circuit.

April 30, 1959.

Jerome A. Cooper, C. V. Stelzenmuller, Birmingham, Ala. (Arthur J. Goldberg, David E. Feller, Washington, D. C., Cooper, Mitch, Black & Crawford, Birmingham, Ala., on the brief), for appellants.

Winthrop A. Johns, Asst. Gen. Counsel, N.L.R.B., Thomas J. McDermott, Assoc. Gen. Counsel, N.L.R.B., Washington, D. C. (Jerome D. Fenton, Gen. Counsel, Jacques Schurre, Atty., National Labor Relations Board, Washington, D. C., on the brief), for appellees.

Burr, McKamy, Moore & Thomas, Birmingham, Ala., on the brief, for charging party.

Before HUTCHESON, Chief Judge, and BROWN and WISDOM, Circuit Judges.

HUTCHESON, Chief Judge.

This is an appeal from an order of the United States District Court for the Northern District of Alabama, granting a petition for temporary injunction filed on behalf of the National Labor Relations Board by the Acting Regional Director, pursuant to the provisions of Sec. 10(l) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 141 et seq., particularly Sec. 160(l). The petition was predicated on charges filed with appellee by Perfection Mattress & Springs Co., alleging that appellants had engaged and were engaging in a secondary boycott proscribed by Section 8(b) (4) (A) of the Act.

After investigation, appellee concluded that there was reasonable cause to believe that appellants had engaged and were engaging in the unfair labor practices charged and that complaint should issue. Accordingly he filed the petition for injunction and the appellants joined issue therewith.

After a hearing, the court, filing findings of fact and conclusions of law,¹ entered the order granting the temporary injunction appealed from. This enjoined and restrained defendants-appellants, pending the final disposition of the matters involved before the Board, from picketing the premises of Standard Furniture Co. and six other named companies by any means or by permitting any such to remain in existence or effect, engaging in or inducing or encouraging employees of said companies or any other employer to engage in a concerted refusal, in the course of their employment, to use, transport, or otherwise handle or work on any goods, articles or commodities or to perform any service where an object thereof is to force or require said companies or other employees or persons to cease doing business with Perfection.

Appealing from the order, appellant, apparently disregarding the fact that the injunction is not final but temporary and that the merits of the complaint to be determined by the Board are not before us for decision and may not at this time be determined by us, states the questions presented and seeks to argue the case as though the matter was before us for decision on the merits.

Appellee, on his part, thus presents the question involved: whether, in accordance with the congressional scheme embodied in Sec. 10(l) of the Act, the action of the court in granting the preliminary injunction while the Board is hearing and deciding the matter on the merits should or should not be affirmed as in conformity with, or in violation of, the Act. In support of its view that the question should be answered in favor of the district judge's action, appellee points out that the injunctive relief contemplated in the section and granted below is purely interlocutory, pending the final determination of the unfair practice proceeding pending before the Board, and is limited to preserving the status quo against the effects of the wrongful action charged. He points out, too, that, in accordance with traditional equity practices with respect to such interlocutory relief, the only prerequisite to its granting is a finding by the district judge that there is probable cause to believe that a violation of the Act as charged has been, or may be being committed and that, on the balancing of conveniences, temporary injunctive, relief is just and proper. He invokes, in short, the equitable principle controlling, that the chancellor is not called upon to decide on the merits whether in fact a violation of the Act has been committed; and that ultimate determination in respect to this question is reserved exclusively for the Board, subject to review by the Courts of Appeals, pursuant to 10(e) and (f) of the Act. Local 450 International Union of Operating Engineers, A.F.L.-C.I.O. v. Elliott, 5 Cir., 256 F.2d 630 and cases cited.

Though, therefore, the appellant seeks to involve us in a determination of the merits of the charge, we must, declining to be so involved, confine our action on this appeal to a determination of the issue before us under the ordinary considerations governing a review here of a preliminary injunction, including, of course, the balancing of conveniences. This being so, we will not undertake to determine whether, on the merits, this court will go with the decisions of the Second Circuit, which appellee categorically describes as "judicially rejecting the view of the Board", National Labor Relations Board v. Business Machine & Office Appliance Mechanics, etc., 228 F. 2d 553, National Labor Relations Board v. Local 50, Bakery & Confectionery Workers, etc., 2 Cir., 245 F.2d 542, other than to say that it seems to us that, as matters now stand, the decisions of this court, National Labor Relations Board v. Truck Drivers Local 728, etc., 5 Cir., 228 F.2d 791, National Labor Relations Board v. Dallas Gen. Drivers, etc., 5 Cir., 1959, 264 F.2d 642, and Truck Drivers & Helpers Local Union No. 728 International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, A.F.L. v. N.L.R.B., 5 Cir., 1959, 265 F.2d 439, seem to look the other way.

Turning, then, to the specific, the sole question before us, whether this court can and should reverse the order appealed from on the ground that there is no basis in law or in fact for the findings of the district court on which he based his order, we think it abundantly clear that we may not, we should not, do so.

In the first place, while there is no evidence that the conduct enjoined has actually induced the employees to take the concerted action prohibited by law, there is no basis for holding that the cumulative effect of such action, though not yet come to a head, will not probably do so while the complaint is being heard by the Board. In addition, it is not necessary that...