Boire v. Pilot Freight Carriers, Inc.

• Decision Date: 16 July 1975
• Docket Number: No. 74-2899,74-2899
• Citation: 515 F.2d 1185
• Parties: 89 L.R.R.M. (BNA) 2908, 34 A.L.R.Fed. 803, 77 Lab.Cas. P 11,033 Harold A. BOIRE, Regional Director of Region 12 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Plaintiff-Appellant-Cross-Appellee, v. PILOT FREIGHT CARRIERS, INC., et al., Defendants-Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1185

515 F.2d 1185

89 L.R.R.M. (BNA) 2908, 34 A.L.R.Fed. 803,

77 Lab.Cas. P 11,033

Harold A. BOIRE, Regional Director of Region 12 of the

National Labor Relations Board, for and on behalf

of the National Labor Relations Board, Plaintiff-Appellant-Cross-Appellee, v. PILOT FREIGHT CARRIERS, INC., et al.,

Defendants-Appellees-Cross-Appellants.

No. 74-2899.

United States Court of Appeals, Fifth Circuit.

July 16, 1975.

Elliott Moore, Deputy Associate Gen. Counsel, Marvin Roth, William R. Hayden, Deputy Asst. Gen. Counsels, N.L.R.B., Abigail Cooley, Washington, D. C., Charles I. Cohen, Charles Deal, John C. Wooten, Attys., N.L.R.B., Tampa, Fla., for plaintiff-appellant-cross-appellee.

L.N.D. Wells, Jr., Dallas, Tex., for Truck Drivers, Local Union 512.

James Blue, James Facciolo, Miami, Fla., Ronald D. McCall, Tampa, Fla., Harvey Lane, Jacksonville, Fla., Granville M. Alley, Jr., Tampa, Fla., for defendants-appellees-cross-appellants.

Appeals from the United States District Court for the Middle District of Florida.

Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.

GEWIN, Circuit Judge:

This appeal involves the second occasion on which the Regional Director of the NLRB has sought § 10(j) relief in a Florida labor dispute between Pilot Freight Carriers, Inc. (Pilot) and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters). Section 10(j) of the Taft-Hartley Act authorizes the NLRB to seek temporary injunctive relief against a party allegedly committing unfair labor practices pending final disposition of the charges by the Board. 29 U.S.C. § 160(j).

The prior proceeding was aimed at the Teamsters, to keep the union from forcing Pilot to bargain before the legal questions could be determined by the Board. The district court granted relief, and we affirmed. Boire v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 479 F.2d 778 (5th Cir. 1973) (hereinafter cited as Boire v. Teamsters). This case presents the reverse side of the coin, for here the Regional Director seeks temporary relief against Pilot and its dock contractor, BBR of Florida, Inc. (BBR) for claimed coercive tactics designed to impede the employees' organizational efforts. The district court granted the desired relief in part, denied it in part, and we affirm.

Writing on a virtual tabula rasa, the Boire v. Teamsters decision, supra, set the boundaries of § 10(j) relief in this circuit. Though Judge Goldberg's scholarly opinion has indeed charted our general course, we nonetheless find it necessary to navigate some hitherto unexplored inlets within the "broad harbor" of § 10(j).

Section 10(j) of the Taft-Hartley Act reads as follows:

The Board shall have power, upon issuance of a complaint as provided in subsection (b) of this section charging that any person has engaged or is engaging in an unfair labor practice, to petition any United States district court . . . for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief as it deems just and proper. 29 U.S.C. § 160(j).

The provision was enacted in 1947, despite Congress' general aversion to labor injunctions. In the fifteen years following passage of the Norris-LaGuardia Act, it had become evident that normal NLRB machinery involving issuance of an unfair labor practice complaint, a hearing before a trial examiner, de novo review by the Board, and an enforcing order by a Court of Appeals was so time-consuming that guilty parties could violate the Act with impugnity during the years of pending litigation, thereby often rendering a final order ineffectual or futile. See Note, 44 N.Y.U.L.Rev. 181 (1969); Note, 45 Texas L.Rev. 358 (1966). Congress therefore gave the labor board a discretionary tool to prevent erosion of the status of the parties pending its final decision.

In an effort to further the principles underlying § 10(j), courts have fashioned a bipartite test for determining the propriety of temporary relief: (1) whether the Board, through its Regional Director, has reasonable cause to believe that unfair labor practices have occurred, and (2) whether injunctive relief is equitably necessary, or, in the words of the statute, "just and proper." Boire v. Teamsters, supra ; NLRB v. Aerovox Corp. of Myrtle Beach, 389 F.2d 475 (4th Cir. 1967); Minnesota Mining and Manufacturing Co. v. Meter, 385 F.2d 265 (8th Cir. 1967); Angle v. Sacks, 382 F.2d 655 (10th Cir. 1967). The first question requires the Board to sustain a minimal burden of proof, but the second demands some exercise of discretion on the part of the trial judge.

I. Reasonable Cause to Believe

In determining whether reasonable cause exists to believe that unfair labor practices have been committed, the district court need only decide that the Board's theories of law and fact are not insubstantial or frivolous. Boire v. Teamsters, supra ; Samoff v. Building and Construction Trades Council, 475 F.2d 203 (3d Cir. 1973); San Francisco-Oakland Newspaper Guild v. Kennedy, 412 F.2d 541 (9th Cir. 1969); Schauffler v. Local 1291, 292 F.2d 182 (3d Cir. 1961); but see Danielson v. Garment Workers, 494 F.2d 1230 (2d Cir. 1974). The Court of Appeals, in turn, reviews the trial court's factual determinations for clear error and its legal conclusions to determine whether they are correct. Boire v. Teamsters, supra at 793. Whether reasonable cause exists, of course, depends upon the facts of a particular case. The scenario pertinent to our decision began shortly after the last Fifth Circuit opinion, in which the relevant facts were copiously detailed. 479 F.2d at 782-86. Briefly, however, some background information is necessary to put the present dispute in perspective. In 1970 the Interstate Commerce Commission granted Pilot Freight Carriers, Inc., a North Carolina corporation, the authority to extend its freight operations as far south as the Florida Keys. Pilot promptly established terminals in Jacksonville, Tampa, Hollywood and Orlando. It did not, however, employ its labor force directly, but instead commissioned men who owned their own trucks, appropriately called owner-operators, to haul freight in the Florida area. Pilot also commissioned dock contractors, who were responsible for hiring dockworkers. Since 1964 Pilot had been a member of the National Master Freight Agreement, and most of Pilot's employees in other areas of the country were Teamsters. The Teamsters took the position that the Florida operations were an accretion to the pre-existing National Master Freight Agreement, so Pilot's new employees were governed by its terms. Pilot disagreed and filed unfair labor practice charges against the Teamsters for their allegedly illegal organizational activities. In the meantime, a unit clarification petition had been filed to determine the accretion question. The Regional Director petitioned the district court for § 10(j) relief against the Teamsters pending final Board determination of the unfair labor practice charges. As mentioned above, we affirmed the district court's grant of relief.

Subsequent to our decision in Boire v. Teamsters, supra, the Board announced its decision in the unit clarification dispute. Released January 31, 1974, the NLRB made four important determinations: (1) the Florida operation was not an accretion to the national bargaining agreement, (2) the owner-operators were employees of Pilot, despite the company's assertions of independent contractor status, (3) Pilot and the dock contractors were joint employers of the dockworkers, and (4) "each of the Florida terminals or the 4 terminals together, may constitute an appropriate unit." Pilot Freight Carriers, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 208 NLRB No. 138, 1974 CCH NLRB P 26,200.

The Board's decision on the accretion issue spurred the Teamsters to immediate organizing at the Jacksonville terminal. The union's efforts were not limited to owner-operators, but also included the dockworkers who worked on the same premises.

The first employee to sign a union card was Melvynn Johnston, a dockworker. He testified that he signed on February 5, 1974 and sponsored a meeting the next day to convince others to join the Teamsters. Johnston was fired on February 7 by the president of BBR who refused to give any reason for the dismissal. ¹ Clarence Brace, one of the first people Johnston solicited concerning the union, testified that he signed a union card on February 6 and was fired on February 7.

Shortly after the discharges, "no solicitation no distribution" signs appeared in the employee lounges of the Jacksonville terminal, along with large octagonally shaped "stop" signs that cautioned employees to think before signing union cards. Management of Pilot and BBR continually voiced their opposition to the Union. There was evidence that the president of BBR promised to fire any employees whom he found had signed union cards, though he denied making such statements. Pilot's president and vice-president gave one "captive audience" speech in which they told the drivers that if the union proved successful, the men would no longer be able to drive their own trucks. Instead, they would have to use company equipment, and the company would not purchase their trucks from them. The speech caused grave concern among the owner-operators who had made substantial investments in their equipment. Pilot personnel added that they would continue to treat the drivers as "independent businessmen", despite the NLRB's ruling that they were employees. Management spokesmen for the freight company said they could not afford union wages or collateral union benefits, and the president of BBR stated flatly that the union would break him.

During the second...