Eisenberg for and on Behalf of N.L.R.B. v. Hartz Mountain Corp.

• Decision Date: 13 June 1975
• Docket Number: 74-1774,Nos. 74-1773,s. 74-1773
• Citation: 519 F.2d 138
• Parties: 89 L.R.R.M. (BNA) 2705, 77 Lab.Cas. P 10,938 Arthur EISENBERG, Regional Director of the Twenty-second Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, v. The HARTZ MOUNTAIN CORPORATION, Appellant. Arthur EISENBERG, Regional Director of the Twenty-second Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, v. The HARTZ MOUNTAIN CORPORATION. Appeal of LOCAL 806, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervenor.
• Court: U.S. Court of Appeals — Third Circuit

Page 138

519 F.2d 138

89 L.R.R.M. (BNA) 2705, 77 Lab.Cas. P 10,938

Arthur EISENBERG, Regional Director of the Twenty-second

Region of the National Labor Relations Board, for

and on Behalf of the NATIONAL LABOR

RELATIONS BOARD, v. The HARTZ MOUNTAIN CORPORATION, Appellant.

Arthur EISENBERG, Regional Director of the Twenty-second

Region of the National Labor Relations Board, for

and on Behalf of the NATIONAL LABOR

RELATIONS BOARD, v. The HARTZ MOUNTAIN CORPORATION.

Appeal of LOCAL 806, a/w International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America, Intervenor.

Nos. 74-1773, 74-1774.

United States Court of Appeals, Third Circuit.

Argued Oct. 22, 1974.

Decided June 13, 1975.

Peter M. Fishbein, Kaye, Scholer, Fierman, Hays & Handler, New York City, Michael S. Waters, Newark, N. J., for appellant in No. 74-1773.

Joseph S. Rosenthal, Steven J. Weiss, Friedlander, Gaines, Cohen, Rosenthal & Rosenberg, New York City, for appellant in No. 74-1774.

Marvin Roth, Deputy Asst. Gen. Counsel, N.L.R.B., Washington, D. C., for appellee N.L.R.B.

Lewis M. Steel, Eisner, Levy & Steel, New York City, for appellee charging party.

Before HASTIE, GIBBONS and WEIS, Circuit Judges.

OPINION OF THE COURT

HASTIE, Circuit Judge.

For a number of years a local of Retail Clerks International Association (AFL-CIO) had been the bargaining representative of the workers employed at the Jersey City facility of Hartz Mountain Corporation. On May 11, 1973, a proper election resulted in the decertification of that union. Immediately thereafter, District 65, Distributive Workers of America, launched a vigorous effort to organize the plant and quickly obtained signatures of a majority of the employees on authorization cards. On this basis and only about two weeks after the decertification of the Retail Clerks, the employer was asked to recognize District 65 as the bargaining representative of its workers. However, Hartz denied this request for recognition, taking the position that an insufficient period had elapsed since the decertification of Retail Clerks for employee opinion to become settled and firm.

During November, 1973, a third union, Teamsters Local 806, began an organizational drive and, as the district court has found in this case, obtained authorization cards signed by a majority of the workers and demanded recognition, which Hartz granted December 3, 1973. On January 3, 1974, Hartz and Local 806 signed labor contracts containing union security clauses, under which Local 806 became the bargaining representative for two units of Hartz workers for a term to expire November 30, 1976.

This recognition of the Teamsters caused District 65 and the Retail Clerks Association to file unfair labor practice complaints against the employer Hartz, although the complaint of the Retail Clerks was subsequently withdrawn. The District 65 complaint became the basis of a formal unfair labor practice charge against Hartz which the Regional Director of the National Labor Relations Board undertook to implement by petitioning a district court for a temporary injunction under Section 10(j) of the National Labor Relations Act, as amended, pending the outcome of the Administrative proceeding against Hartz. The district court permitted Teamsters Local 806 to intervene.

Although Hartz and Local 806 asked that oral testimony be received, the court authorized and required that the case be submitted on affidavits. This was done.

The court concluded that the Regional Director of the Board "had reasonable cause to believe" that the employer "deliberately involved itself in the organization activities of Local 806 and actively sought this Union's approval from its employees, thus committing an unfair labor practice as defined in the Act." The court then considered whether it would be "just and proper" within the intendment of Section 10(j) to issue the requested injunction. It concluded that the continuation of Local 806 as bargaining representative during the pendency of the unfair labor practice proceeding was likely to cause "erosion of support from District 65" which would prejudice "any future election that might subsequently be ordered by the Board," if District 65 should prevail before it. This reasoning led the court to issue a temporary injunction which, in principal part, restrained Hartz from "giving effect to the collective bargaining agreements with the Teamsters executed on or about January 3, 1974" and from recognizing "Teamsters as the collective bargaining representative of any of its employees unless and until Teamsters had been certified (as such) by the Board . . . ." Thereafter, Hartz sought the court's permission to keep in effect a part of the collective bargaining agreement that created an employees' health and welfare fund pursuant to Section 302 of the Labor Management Relations Act. However, the Board objected to this and the court declined to modify its injunction. This appeal from the injunction followed.

Section 10(j) of the Act, a provision of the National Labor Management Act of 1947, reads as follows:

"(j) The Board shall have power, upon issuance of a complaint as provided in subsection (b) of this section charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, 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 or restraining order as it deems just and proper."

29 U.S.C. § 160(j).

Along with Section 10(j) Congress also enacted Section 10(l ) which provides:

"(l ) Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(A), (B), or (C) of section 158(b) of this title, or section 158(e) of this title or section 158(b)(7) of this title, the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. If, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition any United States district court within any district where the unfair labor practice in question has occurred, is alleged to have occurred, or wherein such person resides or transacts business, for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law . . . ."

29 U.S.C. § 160(l ).

The present appeal requires us to consider for the first time ¹ the proper application of Section 10(j). However, some guidance is provided by this court's opinion, handed down nearly twenty years ago, on an appeal from an order that had granted temporary relief under the companion Section 10(l ). In Schauffler v. Highway Truck Drivers & Helpers, Local 107, 3d Cir. 1956, 230 F.2d 7, we held that to justify Section 10(l ) relief, a district court must "find that there is reasonable cause to believe that a violation of the act as charged has been committed" and then "proper(ly) exercise . . . judicial discretion" as to the appropriateness of particular relief. 230 F.2d at 9. Our concern about the appropriateness of particular relief was shown by our holding that the allegedly offending union, though properly enjoined from continuing acts that seemed to constitute a secondary boycott should not, in litigation ancillary to the undecided unfair labor practice proceeding against it, be required in addition to post notices "confess(ing) by implication (to) a violation of the statute of which they have not been found guilty." 230 F.2d at 13.

Illegal organizational or jurisdictional strikes, secondary boycotts and hot cargo contracts are the specified wrongs that are the subject matter of Section 10(l ). In its nature any such conduct impinges directly upon the public interest in the free flow of commerce. Accordingly, Congress indicated that, once it should appear likely that a respondent's conduct was of this type, a court might properly grant a temporary injunction restraining the disruptive action until the Board could fully hear and decide the underlying controversy about it. ² But, as we decided in Schauffler v. Highway Truck Drivers & Helpers, supra, even in a 10(l ) proceeding, relief beyond that needed to stop ongoing disruption of commerce is inappropriate, absent some persuasive showing that to grant it before the merits of the unfair labor practice claim had been decided would, in the circumstances of the particular case, be "just and proper."

Section 10(j), different from Section 10(l ), creates jurisdiction to grant "just and proper" temporary relief pending Board decision upon any unfair labor practice charge, even though no disruption of commerce is charged. Thus, the exigencies of determining what relief, beyond enjoining disruption of commerce, is "just and proper" are likely to be of critical importance when relief is sought under Section 10(j), even as they were on the issue of posting notices in Schauffler.

Some general guidance is provided by the Senate Report explaining and justifying the addition of Section 10(j), a provision which did not appear in the bill as first passed by the House of Representatives. That Report states that the new subsection was added so "that the Board, acting in the public interest and not in the...