Kennedy v. San Francisco-Oakland Newspaper Guild

• Decision Date: 12 October 1970
• Docket Number: No. 25655,25656.,25655
• Citation: 430 F.2d 317
• Parties: Ralph E. KENNEDY, Regional Director of Region 21 of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, the Los Angeles Herald-Examiner, Division of the Hearst Corporation, the San Francisco Examiner, Division of the Hearst Corporation, Plaintiffs-Appellants, v. SAN FRANCISCO-OAKLAND NEWSPAPER GUILD et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

430 F.2d 317 (1970)

Ralph E. KENNEDY, Regional Director of Region 21 of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, the Los Angeles Herald-Examiner, Division of the Hearst Corporation, the San Francisco Examiner, Division of the Hearst Corporation, Plaintiffs-Appellants, v. SAN FRANCISCO-OAKLAND NEWSPAPER GUILD et al., Defendants-Appellees.

Nos. 25655, 25656.

United States Court of Appeals, Ninth Circuit.

July 28, 1970.

Judgment Vacated October 12, 1970.

Charles G. Bakaly, Jr. (argued), of O'Melveny & Myers for 25655, Los Angeles, Cal., Milo V. Price, Atty. (argued), of N.L.R.B., Los Angeles, Cal., for 25656.

Marcel Mallett-Prevost, N.L.R.B., Washington, D. C., McEnerney & Jacobs, San Francisco, Cal., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Julius G. Serot, Asst. Gen. Counsels, Daniel J. Harrington, Regional Atty. of N.L.R.B., Los Angeles, Cal., for appellants.

Stephen Reinhardt (argued), George E. Bodle, Daniel Fogel, Lester G. Ostrov of Bodle, Fogel, Julber & Reinhardt, Herbert M. Ansell, of Ansell & Ansell, Leo Geffner, of Geffner & Satzman, Eugene Miller, of Brundage, Neyhart, Miller, Ross & Reich, Los Angeles, Cal., Duane B. Beeson, of Neyhart, Brodin & Beeson, Irwin Leff, of Rosenthal & Leff, R. Barry Churton, of Cooper, White & Cooper, San Francisco, Cal., for appellees.

Before MERRILL and TRASK, Circuit Judges, and FERGUSON, District Judge.^*

Judgment Vacated October 12, 1970. See 91 S.Ct. 12.

MERRILL, Circuit Judge:

This appeal is taken from an order of April 6, 1970, dissolving a temporary injunction which had been issued February 8, 1968, on the petition of appellant Regional Director of the National Labor Relations Board¹ pursuant to § 10(l) of the National Labor Relations Act, 29 U.S.C. § 160(l). The question presented is whether dissolving of the injunction constituted an abuse of discretion by the District Court.

These proceedings arose out of a labor dispute between appellees and the Los Angeles Herald-Examiner, a division of Hearst Corporation, which publishes a daily newspaper in Los Angeles. On January 5, 1968, appellees began picketing and circulating handbills in support of that dispute in San Francisco. They sought to obtain a work stoppage at the San Francisco plants and business premises of the San Francisco Examiner (another division of Hearst Corporation, which publishes a daily newspaper in San Francisco), the Chronicle Publishing Company (an independent corporation, which also publishes a daily newspaper in San Francisco), and the San Francisco Newspaper Printing Company (an independent corporation which performs printing and other services for both the Examiner and the Chronicle).

The three San Francisco concerns and the Los Angeles Herald-Examiner filed charges with the Board asserting that appellees' San Francisco activities constituted an unfair labor practice in violation of 29 U.S.C. § 158(b) (4) (B).² Appellant Regional Director then petitioned the District Court pursuant to § 160(l)³ for injunctive relief pending Board determination of the charges, and a temporary injunction was issued. In effect it enjoined further picketing and circulation of handbills at the premises of the three San Francisco concerns "pending the final disposition of the matters involved pending before the N.L.R. B."

The charges before the Board were referred to a trial examiner and in March, 1968, he made his report and recommendations to the Board. He concluded that activities directed against the Chronicle and the Printing Company violated § 158(b) (4) (B), but that the activities directed against the Examiner were not violations since the Examiner, like the Los Angeles Herald-Examiner, was a division of Hearst Corporation. The matter was transferred to the Board, objections and briefs were filed and the matter stood submitted by the end of April, 1969. No decision has yet been rendered by the Board.

On January 27, 1969, in a similar proceeding apparently involving identical factual and legal issues,⁴ a decision diametrically opposed to that respecting the San Francisco Examiner was rendered by a trial examiner in Baltimore, Maryland. This matter also is pending before the Board, and was consolidated with the San Francisco proceeding at the request of appellees herein.

On February 24, 1970, appellees moved to dissolve the preliminary injunction, contending that it had remained in existence for an unreasonable period of time. Hearings were held and on April 6, 1970, the District Court ordered dissolution of the temporary injunction. The order was stayed pending appeal in so far as it concerned the Chronicle and the Printing Company. On April 14, 1970, this court stayed the order in its entirety pending appeal.

Under § 160(l) the District Court has discretion "to grant such injunctive relief or temporary restraining order as it deems just and proper * * *." Delay in Board action has been held to constitute a valid consideration in the exercise of court discretion, Douds v. Wood, Wire and Metal Lathers Intern. Ass'n, 245 F.2d 223, 226 (3d Cir. 1957); United Brotherhood of Carpenters, etc. v. Sperry, 170 F.2d 863, 869 (10th Cir. 1948), and limitation of the injunction to what is prospectively regarded as a reasonable period of time has been held proper, Getreu for and on Behalf of N.L.R.B. v. International Typographical Union, 205 F.Supp. 931 (S.D.Ohio 1962), even though it is clear that there is no specific time limitation on an injunction granted under § 160(l).⁵

Appellant (and charging parties as amici curiae) insist, however, that passage of what is regarded as an unreasonable period of time in the administrative process is not a proper consideration in the exercise of judicial discretion and is no justification for termination of a temporary injunction designed to remain effective until Board determination has been had. They rely in part on NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969).⁶

In that case the Board, after considerable delay, ordered back pay for certain individuals as remedy for an unfair labor practice. The Court of Appeals, because of what is considered "inordinate" delay, prejudicial to the employer, modified the Board's order by providing an earlier cut-off date for back pay. The Supreme Court reversed, holding that the Court of Appeals had "exceeded the narrow scope of review provided for the Board's remedial orders." 396 U.S. at 266, 90 S.Ct. at 421. It recognized that delay in the administrative process was "deplorable," 396 U.S. at 265, 90 S.Ct. 417, but rejected the shifting of the cost of that delay "from the wrongdoing company to the innocent employees," contrary to the Board's discretionary order. 396 U.S. at 264, 90 S.Ct. at 420.

But the discretion we are reviewing here is not that of the Board but that exercised by the District Court. The District Court was not reviewing a Board or the exercise of Board discretion, and was not attempting to discipline the Board or the charging parties by lessening the force of the Board's proposed remedy. While it is clear that the District Court hoped to spur the Board to faster action by its order, its responsibility under the Act was to ascertain whether continuation of interlocutory restraint under the circumstances was just and proper.

In our view where the conduct enjoined appears to be a clear violation of § 158(b) (4...