Samoff v. BUILDING & CONST. TR. COUN. OF PHILADELPHIA & VICINITY

• Decision Date: 27 February 1973
• Docket Number: No. 72-1759.,72-1759.
• Citation: 475 F.2d 203
• Parties: Bernard SAMOFF, Regional Director of the Fourth Region of the National Labor Relations Board, For and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant, v. The BUILDING AND CONSTRUCTION TRADES COUNCIL OF PHILADELPHIA AND VICINITY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Third Circuit

475 F.2d 203 (1973)

Bernard SAMOFF, Regional Director of the Fourth Region of the National Labor Relations Board, For and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant, v. The BUILDING AND CONSTRUCTION TRADES COUNCIL OF PHILADELPHIA AND VICINITY, Respondent-Appellee.

No. 72-1759.

United States Court of Appeals, Third Circuit.

Argued December 5, 1972.

Decided February 27, 1973.

Marvin Roth, N. L. R. B., Washington, D. C., for appellant.

Peter G. Nash, General Counsel, Julius G. Serot, Sp. Counsel to General Counsel, Marvin Roth, Supervisory Atty., Alan Banov, Atty., N. L. R. B., Bernard N. Katz, Meranze, Katz, Spear & Bielitsky, Philadelphia, Pa., for respondent-appellee.

Shawe & Rosenthal, Baltimore, Md., Warren M. Davison, Washington, D. C., for Samuel E. Long, Inc., amicus curiae.

Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

This is an appeal from an opinion and order of the district court¹ in which that court declined to issue a preliminary injunction under § 10(l)² of the Labor Management Relations Act of 1947, as amended 61 Stat. 149; 73 Stat. 544; 29 U.S.C. § 160(l). This court has jurisdiction under 28 U.S.C. § 1292.

Samuel Long is a non-union contractor, i. e., none of his workers belong to unions. But sub-contracting on his construction jobs is often given to sub-contractors with union labor contracts. Appellee Building and Construction Trades Council is a trade association with area construction unions as members. Appellee decided to picket Long's latest job site, the district court found, solely to force him to employ only sub-contractors who use union labor, when and if he chooses to sub-contract. He would apparently have a free choice concerning whether to sub-contract. The appearance of the pickets caused a disappearance of all union labor at Long's latest job site, bringing work to a standstill.

Long filed a charge with the National Labor Relations Board, claiming that appellee was engaging in an unfair labor practice prohibited by § 8(b)(7)(C)³ of the Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C. § 158(b)(7)(C). Pursuant to § 10(l), the Board moved for a preliminary injunction against the picketing pending a final decision by the Board⁴ as to whether the picketing was in fact an unfair labor practice.

For there to be an unfair labor practice under § 8(b)(7), two conditions must be met. First, the introductory clause must be satisfied, i. e., a labor organization must be picketing an employer with an objective of forcing that employer to recognize the organization as a representative of his employees. Secondly, one of the conditions in sub-paragraphs (A), (B) or (C) also must be met.

Although the Council's purpose was not to represent Long's employees but to force him to accept union sub-contractors, the Board still claims that the introductory clause was violated. The Board reasoned that contracting out of work which might be performed by Long's employees was a term or condition of employment of Long's employees. If, therefore, Long was forced to deal with the Council on the issue of sub-contracting, he would in effect be recognizing the Council as the agent of his employees on that particular issue. This issue is important enough to have a susbtantial impact on Long's employees. Therefore, it should be sufficient to satisfy the introductory clause. In support of this argument, the board relied heavily upon Dallas Building & Construction Trades Council v. N. L. R. B., 130 U.S.App.D.C. 28, 396 F.2d 677 (1968), enf'g. 164 N.L. R.B. 938 (1967) and also Lane-Coos-Curry-Douglas Counties Building & Construction Trades Council v. N. L. R. B., 415 F.2d 656 (9th Cir. 1969), enf'g. 165 N.L.R.B. 538 (1967). The NLRB felt that sub-contracting was an important issue to Long's employees even though the agreement the Council wanted Long to sign stated only that when he sub-contracted, he had to sub-contract with union employers.

The Board then claimed that sub-paragraph (C) of § 8(b)(7) was also violated since no petition for an election under § 9(C) had been filed and since none of the exceptions to § 8(b)(7)(C) had been met.

The district court, after a comprehensive consideration of the legislative history and related case law, determined that the union's picketing did not violate the introductory clause of § 8(b)(7). The Court reasoned that read in the context of sub-paragraph (C), the introductory clause means that for picketing to be "recognitional," it must have as a goal the recognition of the bargaining agent (here the Council) as the "full collective bargaining agent of those employees." According to the district court, since the effect of the proposed agreement at most would be that the Council would be the representative of Long's employees as to only one issue (sub-contracting), the introductory clause would not be violated. After holding that it was not required to issue a preliminary injunction where it disagreed with the legal theory upon which the Board relied, the court denied the Board's motion for that relief.

The Board has appealed from this denial. Its primary contention is that the district court applied an incorrect standard of law in determining when a § 10(l) injunction should issue. The Board claims that the district court misinterpreted our decision in Schauffler v. Local 1291, International Longshoremen's Association, 292 F.2d 182 (3d Cir. 1961).

In Schauffler, this circuit was reviewing the decision of a district court to grant a § 10(l) injunction. We said that whether such an injunction should be issued turned on whether there was reasonable cause to believe that an unfair labor practice listed in that section had been committed:

"The Board need not show that an unfair labor practice has been committed, but need only demonstrate that there is reasonable cause to believe that the elements of an unfair labor practice are present. Nor need the Board conclusively show the validity of the propositions of law underlying its charge; it is required to demonstrate merely that the propositions of law which it has applied to the charge are substantial and not frivolous." Schauffler v. Local 1291, supra at 187.⁵

This test was designed to effectuate the Congressional purpose in enacting § 10(l).

"The Section 10(l) procedure reflects the congressional determination that certain unfair labor practices are so disruptive that where there is reasonable cause to believe that they are being engaged in their continuance during the pendency of charges before the Board should not be permitted. S.Rep.No.105, 80th Cong., 1st Sess., pp. 8, 27.⁶

* * * * * *

"If, in a Section 10(l) proceeding, a district court or a court of appeals undertook to finally adjudicate such questions it would not be acting consistently with the congressional policy underlying Section 10(l). That Section\'s usefulness as a tool with which the status quo may be preserved pending final adjudication would be diminished insofar as the Board would be required to finally litigate questions of substance at a preliminary stage. Moreover, the court would not have the benefit of the Board\'s opinion on questions of fact and novel questions of labor law when making its decision. Thus, the court would, to some extent, usurp the Board\'s function as the primary fact finder in cases arising under the Act and its function as primary interpreter of the statutory scheme." Schauffler v. Local 1291, supra, 292 F.2d at 187, 188.

The district court noted that Schauffler set the applicable standard for determining when a § 10(l) injunction should be granted. But it went on to say:

"We do not read § 10(l), as thus construed, to require a District Court, charged with granting injunctive relief under § 10(l) where it is `just and proper\', to grant relief based upon legal theories advanced by the Board, which, while thoughtfully presented and not frivolous, are, in the view of the Court, erroneous." (Emphasis added).

This is a misinterpretation of Schauffler. As dictated by that decision, the district courts have a limited role in § 10(l) proceedings. Schauffler requires only that the Board's theory be substantial and not frivolous; and if it is, it does not matter whether the district court ultimately agrees with it or not. The Board met its burden here for we feel that the district court's statement that the Board's theory was "thoughtfully presented and not frivolous" can fairly be interpreted to mean that the Board's theory was substantial and not frivolous.

This does not mean that a district court must always grant an injunction even though it disagrees with the Board's legal theory. If the district court can characterize the theory as insubstantial and frivolous, it may refuse the injunction. If the Board's theory cannot be so characterized, however, the district court must grant the injunction since this will best effectuate the Congressional policy against disruption of commerce expressed in § 10(l).⁷

Appellee argues that a motion for a preliminary injunction under § 10(l) is addressed to the discretion of the district court and that its decision should not be reversed unless there has been a clear abuse of its discretion. E. g., Samoff v. Williamsport Building and Construction Trades Council, 451 F.2d 272, 274 (3d Cir. 1971). It points out that Schauffler was an appeal from the grant of a preliminary injunction whereas this case is an appeal from a denial of such an injunction.

Appellee's argument could possibly be successful if we were reviewing the decision of the district court after it had applied the proper legal standard in reaching its decision. As previously mentioned, however, the district court misinterpreted Schauffler and thus applied an incorrect standard.

To accept appellee's argument and the district court's decision would circumvent the statutory process of review in these cases....