Asseo v. Pan American Grain Co., Inc., 86-1119

• Decision Date: 10 September 1986
• Docket Number: No. 86-1119,86-1119
• Citation: 805 F.2d 23
• Parties: 123 L.R.R.M. (BNA) 2996, 105 Lab.Cas. P 12,102 Mary Z. ASSEO, etc., et al., Plaintiffs, Appellees, v. PAN AMERICAN GRAIN COMPANY, INC., and Pan American Grain Manufacturing Company, Inc., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 23

805 F.2d 23

123 L.R.R.M. (BNA) 2996, 105 Lab.Cas. P 12,102

Mary Z. ASSEO, etc., et al., Plaintiffs, Appellees, v. PAN AMERICAN GRAIN COMPANY, INC., and Pan American Grain Manufacturing Company, Inc., Defendants, Appellants.

No. 86-1119.

United States Court of Appeals First Circuit.

Heard Sept. 10, 1986.

Decided Nov. 10, 1986.

Antonio Moreda-Toledo with whom Moreda, Moreda & Arrillaga, Hato Rey, P.R., was on brief, for defendants, appellants.

Michael J. Israel with whom Joseph E. Mayer, Asst. Gen. Counsel, John W. Hornbeck, Deputy Asst. Gen. Counsel, Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, and Harold J. Datz, Associate Gen. Counsel, Washington, D.C., were on brief, for plaintiffs, appellees.

Before CAMPBELL, Chief Judge, ALDRICH and COFFIN, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

Pan American Grain Company and Pan American Grain Manufacturing Company (collectively referred to as Pan American Grain), appeal from an order of the United States District Court for the District of Puerto Rico granting a temporary injunction. The injunction was requested by the Regional Director of the National Labor Relations Board pursuant to section 10(j) of the National Labor Relations Act, 29 U.S.C. Secs. 151, 160(j) (1982). The district court enjoined Pan American Grain, pending the Board's final disposition in this case, to cease and desist from its conduct in violation of the National Labor Relations Act; to reinstate four employees alleged to have been discriminatorily discharged; to recognize and bargain with the Union as the representative of Pan American Grain's production and maintenance employees; and to post in its plant a copy of the court's opinion. We affirm the district court's order.

Pursuant to unfair labor practice charges filed by the Congreso de Uniones Industriales de Puerto Rico (hereinafter "the Union"), the Regional Director issued various complaints, consolidated complaints and amended consolidated complaints against Pan American Grain, as employer, in the period between July 23, 1985 and December 12, 1985.

The complaints alleged that Pan American Grain had violated section 8(a)(1), (3) and (5), 29 U.S.C. Sec. 158(a)(1), (3), (5) (1982), of the Act by interrogating employees concerning their support for the Union; discharging employees because of their support for the Union; threatening employees with physical harm, dismissals, loss of wages and benefits and other reprisals, because of their support for the Union; threatening plant closure because of Union activity; creating the impression of surveillance; granting wage increases and promising benefits in exchange for employees' repudiation of the Union; circulating and soliciting signatures on a petition disavowing the Union; and refusing to recognize and bargain with the Union as the majority representative of the employees. These unfair labor practices allegedly occurred before and after a union representation election was held. They supposedly continued through the beginning of hearings concerning them held by an administrative law judge of the Board. Starting on October 21, 1985, these administrative hearings proceeded until suspended on October 25. In December 1985, acting under section 10(j), the Regional Director sought temporary injunctive relief against Pan American Grain. The district court held a three-day evidentiary hearing, at which it accepted into evidence transcripts of employee testimony before the ALJ, and also heard live testimony from other employees and from officials of Pan American Grain. The court subsequently issued its opinion and order for temporary injunctive relief to which this appeal is addressed.

Section 10(j) of the Act authorizes interim injunctive relief to maintain the status quo pending the Board's ultimate decision on the merits of the underlying unfair labor practice claims. Fuchs v. Hood Industries, 590 F.2d 395, 397 (1st Cir.1979). In the interim proceeding, the district court is not expected to decide the merits of the unfair labor practice claims, since that is the Board's responsibility. Rather, the district court must determine whether there is reasonable cause to believe that the alleged unfair labor practices were committed. To do so, the court need only find that the Regional Director's position is fairly supported in the evidence. Maram v. Universidad Interamericana de Puerto Rico, 722 F.2d 953, 959 (1st Cir.1983). At the same time, as we there pointed out, the strength of that position, viz., the relative likelihood that the Board will eventually succeed on the merits, must be considered in connection with the other criteria that determine the appropriateness of injunctive relief, see infra.

This court's review is limited to whether the district court was clearly erroneous in finding reasonable cause to believe that there were unfair labor practices and whether it abused its discretion in granting injunctive relief. Union de Tronquistas de Puerto Rico v. Arlook, 586 F.2d 872, 876 (1st Cir.1978).

I. THE UNFAIR LABOR PRACTICES

We believe the record afforded reasonable cause for the district court to believe that the unfair labor practices occurred. Employees testified to each of the alleged unfair labor practices before either the ALJ or the district court. Pan American Grain asserts that their testimony furnished inadequate support for the court's findings because the company presented affidavits from each testifying employee contradicting his own testimony.

The district court, however, could reasonably disregard the affidavits. Pan American Grain's attorney testified to sitting alone with each individual employee in a room at the employer's office, and there drafting and notarizing the affidavits. When confronted with the affidavits, each employee testified that the only reason he had subscribed to the statements was because he felt that to refuse would result in reprisals, such as discharge, or plant closing.

It is true that a district court's function in a section 10(j) case is not to weigh the credibility of contradictory evidence, and so decide the merits. However, to determine whether the Regional Director's position was fairly supported, the court had to decide whether the affidavits were a reason not to credit the employees' otherwise persuasive testimony. The circumstances surrounding the making of the affidavits, and the employee-affiant's testimony as to the coercive pressures, provided reasonable grounds for disregarding them.

Pan American Grain asserts that the district court should not have accepted into evidence transcripts from the hearing before the ALJ, claiming that they were inadmissible hearsay. ¹ This argument is without merit. Affidavits and other hearsay materials are often received in preliminary injunction proceedings. The dispositive question is not their classification as hearsay but whether, weighing all the attendant factors, including the need for expedition, this type of evidence was appropriate given the character and objectives of the injunctive proceeding. Compare SEC v. Frank, 388 F.2d 486 (2d Cir.1968) with Ross-Whitney Corp. v. Smith Kline & French Laboratories, 207 F.2d 190, 198 (9th Cir.1953). Testimony from an administrative hearing before a labor board ALJ was used in Fuchs v. Hood Industries, 590 F.2d 395, 398 (1st Cir.1979). See also Flynt Distributing Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir.1984) (for preliminary injunction trial court may consider otherwise inadmissible evidence when to do so will prevent irreparable harm).

In this case the court conducted an evidentiary hearing of its own at which it heard live testimony from a number of witnesses, and it also considered the transcript of the testimony received in so much of the unfair labor practice proceedings before the ALJ as had so far taken place. Essentially the same issues being examined by the district court were also at issue before the ALJ, and appellants had the opportunity to cross-examine each witness in the hearing before the ALJ. Later, at the injunctive hearing, appellants could have sought to recall any of these witnesses for further examination had they wished. We believe the nature of the hearing before the ALJ made it entirely appropriate for the district court to review the transcript of that hearing in determining whether there was reasonable cause to believe that unfair labor practices had taken place. ²

We conclude that the district court's determination of reasonable cause was supported in the record and that its factual findings were not clearly erroneous.

II. THE PROPRIETY OF INJUNCTIVE RELIEF

Once reasonable cause is established, this court reviews whether the district court abused its discretion in determining that the particular injunctive relief was just and proper. When determining whether injunctive relief is just and proper in a section 10(j) proceeding, the "whole panoply of discretionary issues with respect to granting preliminary relief must be addressed." Maram v. Universidad Interamericana de Puerto Rico, 722 F.2d at 958. In this circuit the standards for granting preliminary injunctive relief are

(1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction.

Planned Parenthood League of Mass. v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981).

In this case, we think the court below was entitled to conclude that, without an interim bargaining order, irreparable harm would result because of the continuing nature of Pan American Grain's violations. Testimony before the district court showed that the employer continued its threats of discharge or plant closings even during the hearings before the...