Kinney v. Pioneer Press

• Decision Date: 07 August 1989
• Docket Number: No. 88-3125,88-3125
• Citation: 881 F.2d 485
• Parties: 132 L.R.R.M. (BNA) 2081, 58 USLW 2163, 112 Lab.Cas. P 11,367 Elizabeth KINNEY, Regional Director of the Thirteenth Region of the National Labor Relations Board, Petitioner-Appellant, v. PIONEER PRESS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 485

881 F.2d 485

132 L.R.R.M. (BNA) 2081, 58 USLW 2163,

112 Lab.Cas. P 11,367

Elizabeth KINNEY, Regional Director of the Thirteenth Region

of the National Labor Relations Board, Petitioner-Appellant, v. PIONEER PRESS, Respondent-Appellee.

No. 88-3125.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 6, 1989.

Decided Aug. 7, 1989.

Joseph F. Frankl, Deputy Asst. Gen. Counsel, argued, Rosemary M. Collyer, Gen. Counsel, Harold J. Datz, Assoc., Gen. Counsel, Joseph E. Mayer, Asst. Gen. Counsel, and John W. Hornbeck, Deputy Asst. Gen. Counsel, Washington, D.C., for petitioner-appellant.

John A. McDonald, Keck, Mahin & Cate, Chicago, Ill., for respondent-appellee.

Before BAUER, Chief Judge, and EASTERBROOK and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

The General Counsel of the National Labor Relations Board believes that Pioneer Press ran afoul of several provisions of the National Labor Relations Act, 29 U.S.C. Secs. 151-69, when it withdrew recognition of Local 71 of the Chicago Newspaper Guild, the union representing its production employees. The General Counsel issued three complaints against this and other of Pioneer's labor practices. An administrative law judge held a trial of these complaints on May 18-20, 1988, but has yet to reveal her decision.

Concerned that the union might wither while the administrative process lumbers to a conclusion, the Board authorized its Regional Director to petition the district court under Sec. 10(j) of the NLRA, 29 U.S.C. Sec. 160(j), for an injunction requiring Pioneer to bargain with Local 71 pending the NLRB's decision. The petition also sought relief on the other charges against Pioneer, which include interference with organizational rights and punishment of collective activity. The district judge, relying on Squillacote v. Meat & Allied Food Workers, 534 F.2d 735, 744 (7th Cir.1976) (Meat Workers ), asked two questions: (1) Does the Director have "reasonable cause" to believe that Pioneer violated the NLRA?, and (2) Is injunctive relief "just and proper"? Answering "no" to both, she sent the Director away empty handed.

I

Pioneer Press publishes suburban newspapers. The Guild has represented the production workers at Pioneer's Wilmette, Illinois, plant since 1977. The collective bargaining agreement was due to expire on January 21, 1988, but the parties agreed to extend it through February 11. This was about all they agreed on. Six bargaining sessions produced a standoff, and when the parties left the table on February 4, they couldn't even agree on a date for the next meeting.

The next day Pioneer received a bizarre document lambasting employees for tepid support of the union's bargaining proposals:

We the Union Negotiators have agreed to propose a 0% pay increase for production personnel for the next 3 years. Without the support of the production personnel we have found that we dont have a leg to stand on. We have decided to suffer the consequences to make non-union members understand what we were fighting for all along THEM.

If you have any comments you would like to be heard I would plan to attend the union meeting next Monday. If you dont have any comments I hope you will understand this contract has been given up as a loss. It seems the company has won this battle and we hope the next contract we will have the support to put forth our proposals with the force we wish we had now. It seems the company has control of the whole process. It has been a definite no or a change of wording to everything we propose. They understand how much we are at a loss and they are taking total advantage of this fact.

All Union-Members must plan to attend this meeting. What we have to say will shock most but hopefully we will be able to show our reasoning. Its time to give up the Battle, lick our wounds and hope for another Battle that we can win at another time.

The Union Negotiators

Scrawled at the bottom were the time and place for a meeting. Pioneer's brass quickly circulated a memo to all employees outlining the company's latest offer--a 3% pay hike, effective immediately.

Apparently Pioneer's production employees didn't take kindly to being berated by their fellows. The February 8th meeting, poorly attended, was followed on the 9th by another, longer missive, again signed "The Union Negotiators":

TO: ALL EMPLOYEES

The Union had figured that money which is basically peoples livelihood would make people motivated enough to express some valuable opinions. Obviously we were wrong. People chose to believe that they could do better on there own. This time they may get there chance. A reminder, once the contract is terminated by the Company, everyones basic protections setup by the Union over the years will be void. The Union has no idea how the Company will deal with seniority, vacations, holidays, hours and overtime. When [Pioneer's Executive Vice President] Frank Santos was asked he did not know.

And so on. Management received a copy of this broadside shortly after announcing its intention to abandon the old agreement and implement its latest offer at midnight February 11th. Sensing from the two notices that the union was on the ropes, and knowing that only 29 of the 99 production workers had dues withheld from their paychecks, Pioneer announced on February 18 that it would no longer bargain with the Guild. It said that it had good-faith doubt whether a majority of production employees still supported the union.

Having concluded that it didn't need to bargain, Pioneer proceeded as though it didn't need to tolerate cooperative activity of any kind. Flyers responding to Pioneer's actions were ripped from bulletin boards that the union had used to post messages. A union representative from the editorial ranks was threatened with disciplinary action for "non-editorial union activity". He'd been seen on March 3d handing out leaflets to production employees; he contends, and Pioneer denies, that the workers were on break at the time. The General Counsel issued complaints charging that Pioneer's acts violated Secs. 8(a)(1), (3), and (5) of the NLRA, 29 U.S.C. Secs. 158(a)(1), (3), and (5), and the Regional Director filed this suit seeking an injunction pending the Board's decision.

II

The Taft-Hartley Act, known formally as the Labor-Management Relations Act of 1947, Pub.L. No. 80-101, 61 Stat. 136, added Sec. 10(j) to the NLRA. It provides:

The Board shall have power, upon issuance of a complaint ... charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court ... for appropriate temporary relief or restraining order. Upon the filing of any such petition the court ... shall have jurisdiction to grant the Board such temporary relief or restraining order as it deems just and proper.

Before Sec. 10(j) the anti-injunction provisions of the Norris-LaGuardia Act, 29 U.S.C. Secs. 101-15, prevented courts from enjoining ongoing wrongs while the Board considered complaints of unfair labor practices. If the delay were long enough, or the sin grave enough, the Board's order might come too late to do any good. One or the other of the contending parties could be defunct.

The Taft-Hartley Act added to the Board's arsenal both Sec. 10(j) and a related provision, Sec. 10(l ), 29 U.S.C. Sec. 160(l ). Although Sec. 10(j) gives the Board the discretion to pursue interim relief against any unfair labor practice once a formal complaint is issued, Sec. 10(l ) requires the Board to seek a preliminary injunction whenever it has "reasonable cause" to believe that any of a small number of specified violations (such as secondary boycotts and certain illegal picketing) has occurred. Both came from the Senate version of what became Taft-Hartley, and the report spells out their purpose:

Time is usually of the essence [in labor disputes], and consequently the relatively slow procedure of Board hearing and order, followed many months later by an enforcing decree of the circuit court of appeals, falls short of achieving the desired objectives--the prompt elimination of the obstructions to the free flow of commerce and encouragement of the practice and procedure of free and private collective bargaining. Hence we have provided that the Board, acting in the public interest and not in vindication of purely private rights, may seek injunctive relief in the case of all types of unfair labor practices and that it shall also seek such relief in the case of strikes and boycotts defined as unfair labor practices.

S.Rep. No. 80-105, 80th Cong., 1st Sess. 8 (1947).

A

The district court refused to issue an injunction, first finding that the Board lacked reasonable cause to believe that Pioneer had violated the NLRA, then concluding that injunctive relief is, in any event, "reserved for more serious and extraordinary circumstances than presented here." This sequential inquiry comes from Squillacote v. Graphic Arts International Union, 513 F.2d 1017, 1021 (7th Cir.1975) (Graphic Arts I ):

[T]he district court is not called upon to decide the merits.... The Board does this. The district court guided by equitable principles determines instead whether the Board has reasonable cause to believe [a violation has occurred]. If the court finds reasonable cause, it must grant whatever injunctive relief "it deems just and proper."

Graphic Arts I was a Sec. 10(l ) case, but Meat Workers, 534 F.2d at 743-44, said that district courts should approach Sec. 10(j) petitions the same way. See also, e.g., Szabo v. P*I*E Nationwide, Inc., 878 F.2d 207, 209 (7th Cir.1989).

The district court examined the record developed before the administrative law judge and chose to credit Pioneer's witnesses, who had testified that the firm had a good faith doubt about the union's majority, rather than to accept the testimony of the union's officers and other evidence in the record, such as the fact that a majority of production employees recently...