Aguayo for and on Behalf of N.L.R.B. v. Tomco Carburetor Co.

Decision Date05 August 1988
Docket NumberNo. 88-5618,88-5618
Citation853 F.2d 744
Parties129 L.R.R.M. (BNA) 2086, 109 Lab.Cas. P 10,663 Victoria E. AGUAYO, Regional Director of the Twenty-First Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Plaintiff-Appellant, v. TOMCO CARBURETOR COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Joseph F. Frankl, Joseph E. Mayer, Asst. Gen. Counsel, and John W. Hornbeck, Deputy Asst. Gen. Counsel, N.L.R.B., Washington, D.C., for plaintiff-appellant.

Kirk N. Sullivan, Cooper, Epstein & Hurewitz, Beverly Hills, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before PREGERSON, BOOCHEVER and THOMPSON, Circuit Judges.

PREGERSON, Circuit Judge:

Victoria Aguayo, Regional Director of the National Labor Relations Board (the Board), appeals on behalf of the Board the denial of its petition for interim injunctive relief under section 10(j) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 160(j), 1 against Tomco Carburetor Co. (Tomco). The Board seeks an order reinstating eleven former Tomco employees who allegedly were discharged because of their union organizing activities. The district court denied the petition after finding that the Board did not show the "requisite necessity" for interim injunctive relief. The Board contends that the district court abused its discretion by concluding that reinstatement was not "just and proper." We agree, and, therefore, reverse the judgment and remand the action with instructions that the district court grant the relief sought by the Board.

BACKGROUND

Tomco operates a carburetor rebuilding facility in Los Angeles that employs approximately 500 persons. On June 23, 1987, Javier Lomeli, a representative of the Teamsters Union Local 485, distributed leaflets at the Tomco facility as part of a union organizing campaign. The following day, Reuben Guerrero, a Tomco employee, contacted Lomeli and requested that Lomeli meet with him and several other Tomco employees who were interested in forming a union organizing committee at the Tomco facility. The other Tomco employees included Cesar Cruz, Salvador Delgado, Felix Gonzalez, Raul Mesa, Carlos Munoz, Fidel Perez, Carlos Romo, Jorge Toledo, and Otto Vargas.

Lomeli held several meetings with the organizing committee. He gave them union authorization cards. During the first two weeks of the campaign, the organizers turned in 176 authorization cards signed by Tomco employees.

On July 4, 1987, Cruz saw a Tomco supervisor observing a union meeting held at a local park. On four other occasions, various Tomco supervisory employees followed union organizing committee members to their meetings. In late July, Tomco foremen began to watch Cruz during his lunch break when he discussed the union with other employees and distributed union literature.

On July 20, one of the Tomco foremen asked Gonzalez what he thought of the union. Gonzalez responded that he did not know. The following day Gonzalez was discharged after he broke a carburetor part on which he was working. The supervisor told Gonzalez that he was terminated because he had been warned in the past not to damage parts. Gonzalez had received past warnings previously to be careful after he had damaged parts, but he had never been warned that he risked termination. Other workers had not been fired after they damaged carburetor parts.

On July 28, a Tomco foreman told Vargas and Toledo that they were being transferred to the welding department. Neither Vargas nor Toledo had any welding experience. Toledo offered to move to any other department but refused to transfer to the welding department because of his poor vision. The supervisor later fired them both for refusing to follow orders. Afterward, the two spoke to Jaime Alfaro, vice president of Tomco. He told them that they knew why they had been fired.

In late July or early August, Alfaro called a meeting of all the assembly department employees. He told them to throw away their "union cards" because the union was not going to come into the factory. He also warned them that employees "involved with the union would have problems with their work."

On August 7, all but one of the remaining committee members were fired assertedly because of a lack of work. When they inquired further, Alfaro or supervisory personnel told them either directly or indirectly that their firings resulted from their union activities or other support rendered to the union. There is some evidence that Tomco hired new employees around the same time as the terminations although Tomco denies this allegation.

On September 4, Alfaro fired Munoz, the last remaining union organizer. Earlier in the month Munoz had been transferred to the welding department from the assembly department. Alfaro later transferred Munoz back to his former assembly job after Munoz promised to cease his union activities. Alfaro fired Munoz on September 4 because of his continued involvement with the union. Lomeli eventually withdrew the representation petition after concluding that the union organizing committee had lost the support of Tomco's employees.

On December 14, the Board filed a petition for injunctive relief under Sec. 10(j) of the Act, 29 U.S.C. Sec. 160(j). The Board sought reinstatement of the eleven discharged union committee members and an injunction against any further harassment by Tomco against employees engaged in union organizing activities.

The district court accepted as true the allegations contained in the Board's petition and in the Board's supporting affidavits.

The court observed that Tomco had engaged in "classic unfair labor practices" if there was any substance to the petition. The court, nonetheless, denied the petition after finding that, although the charges were serious, the Board failed to show the "requisite necessity to protect the purposes of the Act...." This appeal followed.

DISCUSSION

Normally there is a significant delay before the Board issues its ruling in an unfair labor practice proceeding. Angle v. Sacks, 382 F.2d 655, 659-60 (10th Cir.1967) (quoting S.Rep. No. 105, 87th Cong., 1st Sess. 8, 27 (1947), which observes that it is often the case that many months pass before the Board completes its hearing and order procedure). Section 10(j) was enacted to provide interim injunctive relief so that the delay would not thwart the desired objective of the Act to protect the collective bargaining process. Id. Section 10(j) authorizes the Board to seek interim injunctive relief to preserve or to restore the status quo while the parties are awaiting a resolution of the unfair labor practice dispute by the Board. Johansen v. Queen Mary Restaurant Corp., 522 F.2d 6, 7 (9th Cir.1975) (per curiam); see also Angle, 382 F.2d at 660. The Board argues here that the public interest in maintaining the collective bargaining process will suffer irreparable injury unless the eleven union organizers are reinstated. Otherwise, Tomco will have succeeded in destroying the union organizational movement at the Tomco facility. We agree.

The district court is required to use a two-prong analysis in determining whether to issue an interim injunction under section 10(j). First, the court must determine whether there is reasonable cause to believe that an unfair labor practice occurred. San Francisco-Oakland Newspaper Guild v. Kennedy, 412 F.2d 541, 544 (9th Cir.1969) (setting out reasonable cause test under companion section 10(l), 29 U.S.C. Sec. 160(l)); 2 accord Gottfried v. Frankel, 818 F.2d 485, 493 (6th Cir.1987). The district court's inquiry into the validity of the Board's unfair labor practice charge is confined to determining whether the factual allegations "are not insubstantial and frivolous." Kennedy v. Los Angeles Typographical Union No. 174, 418 F.2d 6, 8 (9th Cir.1969) (quoting San Francisco-Oakland Newspaper Guild, 412 F.2d at 544). Second, the court must determine whether the interim injunctive relief the Board seeks is "just and proper." 29 U.S.C. Sec. 160(j); see also Los Angeles Typographical Union No. 174, 418 F.2d at 8 (injunctive relief ordered must be "appropriate," i.e., just and proper); San Francisco-Oakland Newspaper Guild, 412 F.2d at 544 (same); accord Gottfried, 818 F.2d at 493-94 (injunctive relief ordered must be just and proper).

We review each prong of the analysis separately. When the district court grants the petition, we review under the clearly erroneous standard its decision that reasonable cause existed to believe that the Act was violated. See San Francisco-Oakland Newspaper Guild, 412 F.2d at 544-45. However, because of the congressional policy favoring the grant of section 10(j) injunctions, when the district court denies the petition, we review de novo its decision that reasonable cause did not exist. See Local No. 83, Constr. Bldg. Materials & Miscellaneous Drivers Union v. Jenkins, 308 F.2d 516, 517 n. 1 (9th We review the "just and proper" prong of the section 10(j) analysis for abuse of discretion. Brown v. Pacific Telephone and Telegraph Co., 218 F.2d 542, 544 (9th Cir.1955); see also Kobell, 731 F.2d at 1089-90; Gottfried, 818 F.2d at 494; Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185, 1192 (5th Cir.1975), cert. denied, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385 (1976). Although the district court has broad discretion in its determination of whether to grant 10(j) relief, its ruling is nonetheless subject to meaningful review to ensure consistency with the statutory purposes. Cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 416-17, 95 S.Ct. 2362, 2371, 45 L.Ed.2d 280 (1975) (district court's discretion to award relief under Title VII "must ... be measured against the purposes which inform [the Act]").

Cir.1962); see also Kobell v. Suburban Lines, Inc., 731 F.2d 1076, 1084-85 (3d Cir.1984) (discussing split of...

To continue reading

Request your trial
53 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT