Johansen for and on Behalf of N.L.R.B. v. San Diego County Dist. Council of Carpenters of United Broth. of Carpenters and Joiners of America, AFL-CIO

• Decision Date: 26 October 1984
• Docket Number: AFL-CIO,Nos. 83-5965,83-6065,A,No. 36,36,s. 83-5965
• Citation: 745 F.2d 1289
• Parties: 117 L.R.R.M. (BNA) 3028, 102 Lab.Cas. P 11,237 Wilford W. JOHANSEN, Regional Director of Region 21 of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. SAN DIEGO COUNTY DISTRICT COUNCIL OF CARPENTERS OF the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,; Southern California District Council of Laborers and Its Affiliated Local Union 89, Affiliated With the Laborers' International Union of North America,; Operative Plasterers and Cement Masons International Association, Local Union 744,; Building Material and Dump Truck Drivers Teamsters Local Unionffiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; San Diego County Building & Construction Trades Council, Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1289

745 F.2d 1289

117 L.R.R.M. (BNA) 3028, 102 Lab.Cas. P 11,237

Wilford W. JOHANSEN, Regional Director of Region 21 of the

National Labor Relations Board, for and on Behalf

of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. SAN DIEGO COUNTY DISTRICT COUNCIL OF CARPENTERS OF the

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,

AFL-CIO; Southern California District Council of Laborers

and Its Affiliated Local Union 89, Affiliated With the

Laborers' International Union of North America, AFL-CIO;

Operative Plasterers and Cement Masons International

Association, Local Union 744, AFL-CIO; Building Material

and Dump Truck Drivers Teamsters Local Union No. 36,

Affiliated With the International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America; San Diego

County Building & Construction Trades Council, Respondents-Appellants.

Nos. 83-5965, 83-6065.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 6, 1984.

Decided Oct. 26, 1984.

Janette Johnson, Washington, D.C., Thomas Tosdal, Georgiou & Tosdal, San Diego, Cal., for petitioner-appellee.

Richard D. Prochazka, San Diego, Cal., Gordon K. Hubel, Levy & Goldman, Los Angeles, Cal., for respondents-appellants.

Appeal from the United States District Court for the Southern District of California.

Before CHOY, Senior Circuit Judge, and NELSON and CANBY, Circuit Judges.

PER CURIAM:

The setting of this case is a heated labor dispute between three unions and seven general contractors at twelve different construction sites. We consider whether the injunctive relief ordered by the United

States District Court for the Southern District of California was appropriate. We conclude that it was not and reverse the district court's order.

I. BACKGROUND

The appellants ("Unions") and a number of general contractors in the building and construction industry were parties to the 1980-1983 San Diego County Master Labor Agreement ("MLA"), which expired on June 15, 1983. On June 8, the Associated General Contractors of America, a multi-employer association, reached agreement with the Unions on the terms of a new MLA to be effective from June 16, 1983, through June 15, 1986. The general contractors had not agreed to be bound by the negotiations for the new MLA and refused to abide by its terms.

In June of 1983, seven general contractors were engaged in work at twelve different construction sites. On June 15, the Unions went on strike against these general contractors and picketed the construction sites the next day. On June 17, the seven general contractors filed charges with the National Labor Relations Board ("NLRB"). They alleged that the Unions were engaging in unfair labor practices in violation of section 8(b)(4)(ii)(A) of the National Labor Relations Act (the "Act"), 29 U.S.C. Sec. 158(b)(4)(ii)(A), which proscribes certain "hot cargo" agreements, and section 8(b)(4)(ii)(B), 29 U.S.C. Sec. 158(b)(4)(ii)(B), which proscribes secondary boycotts.

The general contractors charged the Unions with not confining their picketing to the construction site gates which were specifically reserved for the contractors, their employees, suppliers, and customers. Rather, the Unions also picketed the gates reserved for neutral subcontractors, their employees, and suppliers.

In their picketing from June 16 until at least June 24, the Unions apparently utilized an identical picket sign at all construction sites, which stated:

CARPENTERS-LABORERS-TEAMSTERS

AND CEMENT MASONS

AFL-CIO

ON STRIKE

[NAME OF TARGETED CONTRACTOR]

NO AGREEMENT

SANCTIONED BY

SAN DIEGO COUNTY

BUILDING TRADES COUNCIL

In addition, the general contractors charged that the Unions distributed several different leaflets to their members instructing them to honor all picket lines. As a result of the Unions' picketing at entrances reserved for neutral employers, employees of neutral subcontractors at most, if not all, of the twelve jobsites declined to cross the picket lines.

The NLRB's Regional Director investigated the charges and found reasonable cause to believe the Unions had violated the Act. On July 1, the Regional Director petitioned the United States District Court for the Southern District of California for injunctive relief, pursuant to section 10(l ), 29 U.S.C. Sec. 160(l ), pending final disposition of the charges by the NLRB. On July 14, the district court granted a temporary injunction, finding reasonable cause to believe that the Unions had violated section 8(b)(4)(ii)(B) of the Act, and that their acts and conduct would likely be repeated unless enjoined. The court did not reach the "hot cargo" issue. In part "B" of the injunction, the court ordered the Unions not to engage in any prohibited actions against secondary employers. In part "A", the court enjoined the Unions from any picketing or leafleting at the twelve construction sites for a period of ten days "in order to dissipate the residual effects of any prior unlawful picketing." ¹ The Unions primarily contest the validity of this part of the order.

II. DISCUSSION

A. Mootness

Appellee NLRB argues that the Unions' appeal from the court's order directing a ten-day hiatus in all picketing and leafleting is moot. This order expired by its own terms on July 24, 1983. The Unions complied with this part of the order so there are no civil or criminal contempt proceedings pending.

An action is not moot if it is "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). The satisfaction of this test requires the combination of two elements: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975); Planned Parenthood v. Arizona, 718 F.2d 938, 949 (9th Cir.1983).

In this case, the "challenged action," which was the ten-day injunction, was "too short to be fully litigated prior to its cessation or expiration." This part of the Weinstein test is often satisfied when a court order, by its own terms, expires in a few days. See Planned Parenthood, 718 F.2d at 949-50. For example, in Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), a Nebraska state judge, in anticipation of a trial for a multiple murder, entered an order restraining the press from publishing or broadcasting accounts of any confessions. The order expired by its own terms when the jury was impaneled. Id. at 546, 96 S.Ct. at 2797. The Court nevertheless held that the constitutional dispute was not moot, stating it would "evade review, or at least considered plenary review in this Court, since these orders are by nature short-lived." Id. at 547, 96 S.Ct. at 2797. Similarly, the court's order in this case directing a ten-day hiatus in all picketing and leafleting expired by its own terms before formal review could be had. See also Carroll v. President of Princess Anne, 393 U.S. 175, 177-79, 89 S.Ct. 347, 349-51, 21 L.Ed.2d 325 (1968) (ten-day order); Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. at 515, 31 S.Ct. at 283 (short term ICC order).

The NLRB argues that the "evading review" requirement of the Weinstein test can be satisfied only when "under no foreseeable circumstances could appellants obtain ... review," citing Barbour v. Central Cartage, Inc., 583 F.2d 335, 337 (7th Cir.1978) (quoting First National Bank v. Bellotti, 435 U.S. 765, 774, 98 S.Ct. 1407, 1414, 55 L.Ed.2d 707 (1978)). The NLRB contends that review is possible because the Unions have the opportunity to obtain a stay pending appeal. This court denied such a stay on July 15, 1983, one day after the injunction order was issued.

The NLRB's reading of the first requirement of the Weinstein test, however, is incorrect. ² This part of the test requires the challenged action to be too short in its duration to be "fully litigated." A court's consideration of an emergency stay, which in this case was denied in less than a day, cannot constitute a full review of an action in the sense contemplated by the Supreme Court in Weinstein. See British Caledonian Airways Ltd. v. Bond, 665 F.2d 1153, 1158 (D.C.Cir.1981) (that court may be able to grant emergency relief is not enough to satisfy first requirement of Weinstein test). ³ The NLRB's interpretation of the Weinstein test also would render it meaningless because there is always some "foreseeable circumstance" in which a court could hastily review a particular matter. Under the first requirement of the Weinstein test, therefore, the ten-day hiatus in all picketing and leafleting "was in its duration too short to be fully litigated prior to its cessation or expiration."

The second part of the Weinstein test requires a "reasonable expectation that the same complaining party would be subjected to the same action again." This is not the first instance of a labor dispute between the Unions and the general contractors. These parties will continue to face each other across the bargaining table. See Trans International Airlines v. International Brotherhood of Teamsters, 650 F.2d 949, 957 n. 5 (9th Cir.1980).

Moreover, the Regional Director will likely continue to request short term injunctions on lawful primary picketing in order to dissipate the residual effects of unlawful picketing. See Nebraska Press Association v. Stuart, 427 U.S. 539, 546-47, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976) (dispute "capable of repetition" because court below authorized state prosecutors to seek orders restraining press). In fact, a general contractor requested the district court to impose another picketing hiatus on August 30, 1983. There is a reasonable expectation that the Unions will be subjected to another...