Arlook for and on Behalf of N.L.R.B. v. S. Lichtenberg & Co., Inc.
| Decision Date | 16 January 1992 |
| Docket Number | No. 91-8162,91-8162 |
| Citation | 952 F.2d 367 |
| Court | U.S. Court of Appeals — Eleventh Circuit |
| Parties | 139 L.R.R.M. (BNA) 2297, 120 Lab.Cas. P 11,093 Martin M. ARLOOK, Regional Director of the Tenth Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Plaintiff-Appellant, v. S. LICHTENBERG & COMPANY, INC., and its Subsidiaries Samsons Manufacturing and Delila Manufacturing, Defendants-Appellees. |
William G. Mascioli, Richard A. Siegel, Ellen A. Farrell, N.L.R.B., Washington, D.C., Kenneth D. Meadows, Gaye N. Hymon, Ellen K. Hampton, N.L.R.B., Atlanta, Ga., for plaintiff-appellant.
Jeffrey B. McClellan, Curtis L. Mack, Ira P. Bernstein, Atlanta, Ga., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Georgia.
Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and HILL, Senior Circuit Judge.
Ordinarily, labor dispute cases can be handled through the regular procedure authorized by the National Labor Relations Act (the "NLRA"); namely, administrative resolution by the National Labor Relations Board (the "Board") followed when necessary by enforcement in the Courts of Appeals. However, because the administrative machinery of labor dispute resolution moves slowly, interim injunctive relief is sometimes necessary in order to preserve the Board's remedial power. For such exceptional cases, Congress has provided the Board with the ability to petition a district court to enjoin any unfair practices pending the outcome of the Board's administrative review of those same practices. This limited authority is contained in Section 10(j) of the NLRA.
The Fifth Circuit, in decisions which are binding upon this court, has twice visited § 10(j). See Boire v. International Bhd. of Teamsters, 479 F.2d 778 (5th Cir.1973); Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185 (5th Cir.1975), cert. denied, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385 (1976). In these cases, our predecessor court announced and applied the following standard for judging the propriety of § 10(j) relief: a district court should grant an injunction only when the Board has "reasonable cause" to believe that labor violations have occurred and only when equitable relief is "just and proper." See Teamsters, 479 F.2d at 787; Pilot Freight, 515 F.2d at 1189.
This court visits § 10(j) for the first time. Below, the Regional Director of the Tenth Region of the Board (the "Regional Director") petitioned the United States District Court for the Southern District of Georgia, seeking § 10(j) injunctive relief against a company allegedly engaged in a panoply of unfair labor practices. The Board claimed that there was reasonable cause to believe that the company had violated several provisions of the NLRA, and that equitable relief was just and proper because without an injunction the Board's ultimate resolution of the dispute would be ineffectual. The district court denied the requested equitable relief. After reviewing and clarifying this area of the law, we REVERSE the decision of the district court.
Defendant-Appellee S. Lichtenberg & Co. has two plants in Georgia, Samsons Manufacturing ("Samsons") and Delila Manufacturing ("Delila") (collectively, the "Company"). The Company employs about 600 workers to make curtains and drapes. The recent history of the Company evinces an intense, protracted labor dispute between the management and the workers. Beginning in late 1987, the employees began organizing with the help of the Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC (the "Union"). Despite management resistance and over management objections, the Union won a Board-conducted election by a large majority, and in October 1989 the Union was certified by the Board as the collective bargaining agent for the employees of the Company.
Between November 1989 and August 1990, the parties met often but could not agree upon a first contract. Over the same time period, the Company's management engaged in a variety of questionable tactics which would later be challenged as unfair labor practices by the Regional Director. Taken as a whole, the record displays reasonable cause for an impartial observer to conclude that these tactics were designed to thwart the organizational efforts of the Union. Several employees reported being threatened and chastised by management for engaging in Union activities. Over the course of four months, management fired nine employees who actively supported the Union: two long-tenured employees who were lodestars of the initial organizational efforts, two less senior Union activists, and five probationary employees.
In addition, the Company began to enforce two policies which could fairly be characterized as "new" rules. First, after an unsuccessful unilateral attempt to institute a more rigid absenteeism policy at Delila, 1 management initiated stricter enforcement of the "discretionary" absenteeism policy which governed the Delila workers. Second, even though workers had historically been permitted to return to their work stations after a second "work buzzer" sounded, management began disciplining employees who were not in position before the sound of the second buzzer. Eventually, the Company completely broke off negotiations with the Union at the end of July 1990, claiming that one employee's participation violated an alleged ground rule because she was the second representative from the same work department--even though the Company had negotiated earlier in the month despite a similar "violation" of that purported ground rule. 2
Affidavits submitted by the Company told a different story. In general, the management denied threatening employees who engaged in Union activities, offered various legitimations for the discharges of the Union supporters, and claimed that it was merely enforcing previously existing absenteeism, buzzer, and bargaining rules. Believing otherwise, the Union took the employees' complaints about the Company's antagonistic conduct to the Regional Director. After a thorough review of these complaints, the Board issued an unfair labor practice complaint on October 5, 1990.
Less than three weeks after the complaint issued, the Regional Director petitioned the district court for injunctive relief pursuant to Section 10(j) of the NLRA, 29 U.S.C. § 160(j) (1988). The gravamen of the Board's petition was that, absent immediate injunctive relief, the Board's ultimate ability to correct the Company's alleged unfair practices would be threatened. The Board asserted that the Company's threats, chastisements, and terminations interfered with the employees' right to unionize and right to engage in collective bargaining, giving the Board reasonable cause to believe that the Company had violated Sections 8(a)(1) and 8(a)(3) of the NLRA. 3 The Board argued further that the Company's unilateral alterations of workplace rules and unfair refusal to bargain gave the Board reasonable cause to believe that the Company had violated Section 8(a)(5) of the NLRA. 4 Finally, the Board contended that given these violations of the labor laws and given the impact that the violations were having upon the employees and their attempts to organize, injunctive relief pursuant to § 10(j) was "just and proper," else the Company's conduct would nullify the final adjudication by the Board.
After hearing live testimony from employees of the Company and representatives of the Union, and after receiving evidence from both the Board and the Company, the district court entered an order on January 14, 1991, denying all of the requested equitable relief. The district court found that the Board had not established reasonable cause to believe that the Company had violated § 8(a)(5) of the NLRA. Although the district court did find that the Board had reasonable cause to believe that the Company had violated § 8(a)(1) and § 8(a)(3) of the NLRA, it ultimately concluded that it was not "just and proper" to grant any equitable relief against the Company. The Board appeals this determination.
Section 10(j) of the NLRA provides:
The Board shall have power, upon issuance of a complaint ... charging that any person has engaged in or is engaging in an unfair labor practice, to petition any district court ... for appropriate temporary relief or restraining order. [The district court] shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.
29 U.S.C. § 160(j) (1988). Congress enacted § 10(j) because administrative resolution "was so time-consuming that guilty parties could violate the Act with impugnity [sic] during the years of pending litigation, thereby often rendering a final order ineffectual or futile." Pilot Freight, 515 F.2d at 1188. In light of this purpose, the Fifth Circuit announced that a district court should grant the Board's request for § 10(j) equitable relief only when (1) there is reasonable cause to believe that the alleged unfair labor practices have occurred, and (2) the requested injunctive relief is "just and proper." Pilot Freight, 515 F.2d at 1188-89; Teamsters, 479 F.2d at 787. Accord Pascarell v. Vibra Screw Inc., 904 F.2d 874, 877 (3d Cir.1990); Aquayo v. Tomco Carburetor Co., 853 F.2d 744, 747 (9th Cir.1988); Gottfried v. Frankel, 818 F.2d 485, 493-94 (6th Cir.1987).
The district court's role in determining whether or not there is reasonable cause to believe that labor violations have occurred is limited to evaluating whether the Board's "theories of law and fact are not insubstantial and frivolous." Pilot Freight, 515 F.2d at 1189. This evaluation has two components--a legal question, and a factual threshold. With respect to the first component, the standard is clear--the Board must present a substantial,...
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