Eisenberg For and on Behalf of N.L.R.B. v. Lenape Products, Inc., 85-5414

• Decision Date: 22 January 1986
• Docket Number: No. 85-5414,85-5414
• Citation: 781 F.2d 999
• Parties: 121 L.R.R.M. (BNA) 2617, 54 USLW 2431, 104 Lab.Cas. P 11,816 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, Appellants, v. LENAPE PRODUCTS, INC., Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 999

781 F.2d 999

121 L.R.R.M. (BNA) 2617, 54 USLW 2431,

104 Lab.Cas. P 11,816

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, Appellants, v. LENAPE PRODUCTS, INC., Appellee.

No. 85-5414.

United States Court of Appeals, Third Circuit.

Argued Oct. 28, 1985.

Decided Jan. 22, 1986.

John Hornbeck, (Argued), N.L.R.B., Washington, D.C., for appellants.

Arnold M. Mellk, (Argued), Ezra D. Rosenberg, Katzenback, Gildea & Rudner, Lawrenceville, N.J., for appellee.

Before GARTH, and BECKER, Circuit Judges, and HUYETT, District judge. ^*

OPINION OF THE COURT

HUYETT, District Judge.

Petitioner Arthur Eisenberg, the Regional Director of the Twenty-second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, filed with the court below a petition pursuant to section 10(j) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 160(j), ¹ for a temporary injunction, requiring respondent Lenape Products, Inc. to offer certain discharged employees interim reinstatement to their former positions. Concluding that imposition of an injunction was not just and proper under all of the circumstances, the district court denied the petition for injunctive relief. Because we find that the district court did not abuse its discretion in denying the petition for an injunction, we will affirm.

I.

In his petition for injunctive relief, petitioner Eisenberg alleged that respondent Lenape engaged in "unfair labor practices" within the meaning of section 8(a)(1) of the NLRA, 29 U.S.C. Sec. 158(a)(1), by discharging employees who had "ceased work concertedly and engaged in a lawful strike." Pursuant to section 10(j) of the NLRA, 29 U.S.C. Sec. 160(j), the National Labor Relations Board (NLRB or Board), through petitioner Eisenberg, sought injunctive relief pending final disposition of the case, and, in particular, sought an order requiring respondent to reinstate those employees who had been discharged pending a final adjudication by the board.

Respondent Lenape is engaged in the manufacture of ceramic products at four New Jersey locations, each of which constitutes a "division." This action arises from a series of events involving the day-shift employees at Division 3. At the relevant time, there were nine people employed on the day shift, and these individuals were not members of any union and therefore were not represented by a collective bargaining agent. Only the employees at Division 4 had union representation although there is some mention in the record that the employees in Division 1 are now unionized.

The events precipitating this action began on December 27, 1984. On that day, at approximately 10:15 a.m., Charles Bernhardt, Sr., an employee at Lenape and the unofficial spokesman for the day shift employees, telephoned Peter Hexter, the Chief Executive Officer for Lenape and told him that the employees were concerned about the working conditions at Division 3. He then demanded to meet with Hexter at 11:00 a.m. "or else we are going to walk out." Hexter responded that he was not available at 11:00 a.m. but that he could be there at noon. Hexter also suggested that it might be more convenient to meet after the holidays. Bernhardt rejected this suggestion claiming that Hexter was merely trying to give the employees the runaround.

Hexter arrived at the Division 3 plant at approximately 12:05 p.m. to find that the employees had left their jobs. The following day, the employees returned and were told that they were considered to have abandoned their positions and would be replaced by new employees.

Prior to the December 27th employee walk-out, dissatisfaction among the employees over working conditions was mounting. Petitioner contends that the dissatisfaction was caused, in large part, by the hiring of Herman Glinecke as "production control manager" for all four divisions. Glinecke allegedly instituted certain changes including (1) new processes for treating ashtrays which caused employees to develop skin rashes and irritations; (2) changes in hours of work without notice; (3) institution of time studies; and (4) disregard for job classifications. Furthermore, the employees were becoming increasingly concerned about health and safety problems within the Division 3 facility including an increasing rat population and exposed electrical wires. Glinecke was allegedly advised of these concerns but never took any remedial action. Moreover, Bernhardt asked Glinecke to contact Hexter to arrange a meeting for the employees with Hexter to discuss employee concerns. Hexter never responded, and it is unclear whether Glinecke ever communicated the concerns of the employees to Hexter.

In early December 1984, the nine employees on the first shift decided to organize a union at Division 3. To this end, they contacted a representative of the Glass, Pottery, Plastic and Allied Workers of America and obtained and signed union authorization cards.

By December 27, the employees decided that they could not accept the working conditions any longer, and Bernhardt therefore placed the telephone call to Hexter. There is a dispute between the parties as to what, if anything, Hexter or other Lenape management personnel knew about the employees' dissatisfaction with the working conditions prior to the walkout. Even the petitioner Board does not contend, however, that Lenape knew that employee dissatisfaction had led to the beginnings of a unionization effort. At most, Hexter may have known, on December 27, 1984, that the employees were acting in concert when they threatened to leave their positions.

Following the walk-out of the nine employees, Hexter met with Helen Brown, President of Lenape to discuss the situation. They concluded that they had to "take a position that even if these people want to come back we cannot allow them back, otherwise we will have chaos with 117 employees, and people will be able to figure out that they can walk out anytime they want ..." Record at 358. Letters were sent to each of the employees advising them that they had forfeited their positions and would be replaced. Despite requests by the employees that they be permitted to return to their previous positions unconditionally, Lenape management remained firm in its position on the dismissals. ²

In response to charges filed by Charles Bernhardt, Sr., the Regional Director issued a complaint and notice of hearing and scheduled a hearing for April 17, 1985. On April 17, 1985, the NLRB authorized the petitioner to petition the district court for injunctive relief pursuant to section 10(j) of the NLRA, 29 U.S.C. Sec. 160(j). Concluding that "[t]he evidence in the record, at least arguably, indicates that the employees were 'acting concertedly' " and therefore that there was reasonable cause to believe that a violation of the NLRA had occurred the court nevertheless refused to grant injunctive relief on the grounds that the petitioner had not met the "just and proper" standard of section 10(j).

II.

Arguing that an injunction order is necessary to restore and maintain the status quo pending a Board adjudication in order to preserve the Board's ability to issue a meaningful remedial order, petitioner Regional Director, on behalf of the NLRB, contends that the district court abused its discretion in denying the petition for injunctive relief. Injunctive relief, including interim reinstatement of the discharged employees, plaintiff contends, was just and proper under all of the circumstances. Respondent, on the other hand, contends that there is an ongoing activity that must be protected in the interim.

In declining to grant the injunctive relief requested, the district court relied upon the provision in section 10(j) which states that when it is in the public interest, a court may grant "such temporary relief or restraining order as it deems just and proper." In reviewing the district court's determination that injunctive relief was not appropriate, we are limited to deciding whether the lower court abused its discretion. Eisenberg v. Wellington Hall Nursing Home, Inc., 651 F.2d 902, 907 (3d Cir.1981). As we have previously noted, when applying the abuse of discretion standard, we should not disturb the district court's factual findings unless they are clearly erroneous. Moreover, we should not reverse the decision of the district court unless the undisturbed factual findings do not substantially relate to the conclusion reached. Kobell v. Suburban Lines, Inc., 731 F.2d 1076, 1092 (3d Cir.1984).

We are satisfied, after applying this standard of review, that the district court engaged in a careful analysis of the circumstances giving rise to the petition and properly took into account the policies underlying section 10(j). In fashioning this provision, Congress sought to ensure that the Board would be able to exercise effectively its ultimate remedial power. Therefore, section 10(j) was included to provide interim relief in a situation in which the Board and courts believe that it is necessary to preserve the effective exercise of such remedial power. Suburban Lines, 731 F.2d at 1091. See also S.Rep. No. 105, 80th cong., 1st Sess. 8, 27 (1947). Section 10(j), however, was never intended to become the normal method for resolving labor disputes. Suburban Lines, 731 F.2d at 1092.

As previously noted, the standard for granting a section 10(j) injunction requires, first, that the district court decide whether there is "reasonable cause" to grant the injunction. This prong of the test is satisfied when, viewing the facts most favorably to the Board, there is sufficient evidence to support the legal theory of violation presented by the Regional Director, and when that theory is substantial and not frivolous. Second, having found "reasonable cause," the district court must find that the issuance of an injunction is ...