Kennedy v. LOS ANGELES JOINT EXEC. BD. OF HOTEL & R. EMP.

• Decision Date: 27 February 1961
• Docket Number: No. 90-61.,90-61.
• Citation: 192 F. Supp. 339
• Parties: Ralph E. KENNEDY, Regional Director of the Twenty-first Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOS ANGELES JOINT EXECUTIVE BOARD OF HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS UNIONS, AFL-CIO: Southern California Cooks Association, Local No. 468; Southern California Waiters Alliance, Local 17; Waitresses and Cafeteria Workers, Local Union No. 639; Bartenders Union, Local 284; and Miscellaneous Restaurant Employees Union, Local 440, Respondents.
• Court: U.S. District Court — Southern District of California

192 F. Supp. 339

Ralph E. KENNEDY, Regional Director of the Twenty-first Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOS ANGELES JOINT EXECUTIVE BOARD OF HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS UNIONS, AFL-CIO: Southern California Cooks Association, Local No. 468; Southern California Waiters Alliance, Local 17; Waitresses and Cafeteria Workers, Local Union No. 639; Bartenders Union, Local 284; and Miscellaneous Restaurant Employees Union, Local 440, Respondents.

No. 90-61.

United States District Court S. D. California, Central Division.

February 27, 1961.

Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Winthrop A. Johns, Asst. Gen. Counsel, Washington, D. C., Daniel J. Harrington, Regional Atty., Region 21, Los Angeles, Cal., Walter N. Moldawer, Milo V. Price, Washington, D. C., Attys., by Milo V. Price, for N.L.R.B.

Paul, Hastings & Janofsky, by Alvin F. Slaight, Jr., Washington, D. C., for charging party.

Bodle & Fogel, Los Angeles, Cal., by Daniel Fogel, and Stephen Reinhardt, Los Angeles, Cal., for respondents.

YANKWICH, District Judge.

On December 28, 1960, Bernard H. Tohl, doing business as The Islander, filed a charge against the respondent Union charging violation of Section 8(b) (7) (B) of the Labor Management Relations Act, as amended 29 U.S.C.A. § 158(b) (7) (B). The gist of the charge is stated in this manner:

"The above named labor organizations, and each of them, by their officers, agents and representatives have been, since on or about December 12, 1960 and now are, picketing or causing to be picketed, or threatening to picket or causing to be picketed, The Islander restaurant, an object thereof being to force or require said employer to recognize or bargain with said labor organizations, and each of them, as the collective bargaining representatives of his employees, or to force or require the employees of The Islander to accept or select such labor organizations as their collective bargaining representatives, where within the preceding twelve months a valid election under section 9(C) of the Act had been conducted."

On January 27, 1961, the Regional Director of the Twenty-first Region of the National Labor Relations Board, for and on behalf of the Board, filed a petition for injunction under Section 10(l) of the Act. 29 U.S.C.A. § 160(l). After an order to show cause was issued the matter was heard by the undersigned upon the answer of the respondents filed February 7, 1961.

Under the Act the remedy sought in the courts is temporary in nature because it is effective only until the Board, in adversary proceedings before it, determines the correctness or incorrectness of the charges. For this reason the question before the court, in a proceeding of this character, is not the existence or nonexistence of the practices contained in the charges before the Board, but whether in instituting this proceeding the Director "has reasonable cause to believe such charge is true". 29 U.S.C. A. § 160(l).

The courts have uniformly held that all that this requires is the prima facie establishment of facts from which an inference might be drawn that the charge is true. If this be so, injunction issues, whether the charges are ultimately proved true in the proceedings before the Director or not. (See the writer's opinion in Le Baron v. Los Angeles Building & Construction Trades Council, D.C.Cal. 1949, 84 F.Supp. 629, 634-637, affirmed in Los Angeles Building & Construction Trades Council v. Le Baron, 9 Cir., 1951, 185 F.2d 405, 406; Douds v. Wood, Wire and Metal Lathers International Association, 3 Cir., 1957, 245 F.2d 223, 225; Douds v. Milk Drivers and Dairy Employees Union Local 584, 2 Cir., 1957, 248 F.2d 534, 537; Local 450, International Union of Operating Engineers, AFL-CIO v. Elliott, 5 Cir., 1958, 256 F.2d 630, 638; American Federation of Radio and Television Artists AFL-CIO v. Getreu, 6 Cir., 1958, 258 F.2d 698, 699.) In Madden v. International Organization of Masters, Mates & Pilots of America, Inc., 7 Cir., 1958, 259 F.2d 312, 313, the principle is summed up very tersely in these words:

"By its express terms that provision is aimed at an injunction pendente lite i. e., pending the final adjudication of the Board based upon its hearings; subsequently judicial review at the Court of Appeals level comes into play. Congress has expressly authorized district courts to grant temporary injunctive relief pending administrative decision. Clearly a district judge proceeding under § 10(l), as here, looks to the statutory yardstick of `reasonable cause' required as the basis for the petition and he is certainly not deciding which party, petitioner or respondent, is ultimately to prevail, nor do we now." (Emphasis added.)

In a matter of this character where the injunction is sought in aid of an administrative procedure provided by the Congress, the usual hesitance of courts to grant temporary injunctions (Paramount Pictures Corporation v. Holden, D.C.1958, 166 F.Supp. 684) does not come into play. For here, as stated by the Supreme Court in a noted case, the

"standards of the public interest not the requirements of private litigation measure the propriety and need for injunctive relief in these cases." Hecht Company v. Bowles, 1944, 321 U.S. 321, 331, 64 S.Ct. 587, 592, 88 L.Ed. 754.

See, Porter v. Warner Holding Co., 1946, 328 U.S. 395, 397-399, 66 S.Ct. 1086, 90 L.Ed. 1332. And see, Brown ex rel. N.L. R.B. v. Pacific Telephone and Telegraph Co., 9 Cir., 1955, 218 F.2d 542, 544, and, especially, the language of the concurring opinion of Judge Pope, at page 545.¹ Rightly, because the injunction is sought in aid of the fulfillment of the social aims provided by a statutory scheme and not to aid a private litigant.

The respondents insist that what is called "informational picketing" is not prohibited by the statute under which this proceeding is instituted. The statute condemns as an unfair labor practice by employees

"to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees: * * *

"(B) where within the preceding twelve months a valid election under section 159(c) of this title has been conducted, or * * *."

The language of the Section is explicit. It prohibits all the acts enumerated in the paragraph within one year after an election. If it did not, it would be meaningless. In the discussion of the Conference Report of the Bill before the Senate, Senator Wayne Morse of Oregon, a noted lawyer and former dean of a law school, is quoted as saying:

"Suppose there had been an election, and the union has lost overwhelmingly. The day after the election is over, bingo, there is another picket line. I think both the employer and the public are entitled to some protection in such a case. It is perfectly fair to have a rule that under such circumstances a picket line cannot be stretched in that kind of labor dispute, for a reasonable period of time. I was willing to go along with 12 months. * *

"I do not believe that the day after the vote, the employer should have to wake up and see a picket line in front of his plant. * * * I think it is reasonable to provide rules of the game, so to speak, that will give such an employer protection from having a picket line stretched before his plant, for at least a reasonable period of time." Legislative history of the Labor Management Relations Act of 1959, Vol. 2, pages 1427, 1428.

The proviso contained in Subdivision 7(c) but confirms the fact that the Congress must have thought that what is called "informational picketing" is forbidden. For if it was not the exception was not necessary.² It cannot be questioned that the Congress could curtail lawfully certain types, or all picketing under certain circumstances, as the states have done. (See, Giboney v. Empire Storage & Ice Co., 1949, 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Building Service Employees International Union v. Gazzam, 1950, 339 U.S. 532, 540-541, 70 S.Ct. 784, 94 L.Ed. 1045; International Broth. of Elec. Workers, Local 501, A. F. of L. v. National Labor Relations Board, 1951, 341 U.S. 694, 705, 71 S.Ct. 954, 960, 95 L.Ed. 1299, and cases cited in notes 9 and 10 of the opinion; Printing Specialties and Paper Converters Union Local 388, AFL v. Le Baron, 9 Cir., 1948, 171 F.2d 331, 334)

If the testimony before the court is viewed in the light of these principles, the conclusion is warranted that reasonable cause exists for the issuance of the injunction sought by the petitioner.

Admittedly, prior to December 12, 1960, the representatives of the respondents did organizational, recognitional and informational picketing. These consisted of appeals to employees to join the union and requests for a contract, both before and after the election was ordered.

The picket line continued from early in the morning until closing time at or about 2 o'clock a. m. The placards carried by the pickets bore the legend

"Islander Unfair We Are Protesting This Employers Unfair Labor Practices L. A. Joint Executive Board of Hotel & Restaurant And Bartenders Union AFL-CIO"

While protesting that it did not desire the election, the Joint Executive Board not only participated in it but in leaflets which were distributed, they extolled the advantages of unionism and ended with the request:

"Vote for the Los Angeles Joint Executive Board Union, AFL-CIO, to Represent You for Improved Wages and Working Conditions and for Security for Yourself and Your Family."

The placards and...