Levine v. C & W Mining Co., Inc.

• Decision Date: 11 December 1979
• Docket Number: No. 79-3229,79-3229
• Citation: 610 F.2d 432
• Parties: 102 L.R.R.M. (BNA) 3093, 87 Lab.Cas. P 11,729 Bernard LEVINE, Regional Director for Region 8 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellee, v. C & W MINING CO., INC. and/or C & W Hauling Company, Inc., Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 432

610 F.2d 432

102 L.R.R.M. (BNA) 3093, 87 Lab.Cas. P 11,729

Bernard LEVINE, Regional Director for Region 8 of the

National Labor Relations Board, for and on behalf

of the National Labor Relations Board, Petitioner-Appellee, v. C & W MINING CO., INC. and/or C & W Hauling Company, Inc.,

Respondent-Appellant.

No. 79-3229.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 4, 1979.

Decided Dec. 11, 1979.

Sheldon R. Jaffery, Zellmer & Gruber, Maxwell J. Gruber, Joyce L. Koontz, Cleveland, Ohio, John Orr Beck, Lisbon, Ohio, for respondent-appellant.

Joseph E. Mayer, John W. Hornbeck, N.L.R.B., Washington, D. C., B. Patricia Dyson, John Kollar, Cleveland, Ohio, for petitioner-appellee.

Before LIVELY and MERRITT, Circuit Judges, and PECK, Senior Circuit Judge.

LIVELY, Circuit Judge.

In this labor case we review a temporary injunction issued by the district court pending a final decision by the National Labor Relations Board (NLRB or Board) in pending unfair labor practice proceedings. The injunction was issued pursuant to section 10(j) of the Labor Management Relations Act, 1947, as amended (The Act), 29 U.S.C. § 160(j), which provides:

(j) Injunctions

The Board shall have power, upon issuance of a complaint as provided in subsection (b) of this section charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.

C & W Mining Co. (C & W) is engaged in strip mining coal at three locations near Lisbon, Ohio. In late September 1978 a dispute broke out between C & W ¹ and truck drivers employed by it to haul coal from its mines to its customers. When C & W refused to negotiate with a representative of the Fraternal Association of Special Haulers, Local 100 (FASH), 20 of the 24 truck drivers employed by C & W went out on strike. On October 6, 1978 the striking drivers returned to work, after a series of confrontations between various officers of C & W and the drivers. On the same day FASH filed a charge with the NLRB alleging that C & W had engaged in, and was engaging in, unfair labor practices as defined in the Act. The union subsequently filed two amended charges of unfair labor practices. Later in October C & W advertised its trucks for sale, and two were sold. One of the more senior drivers was discharged and C & W began contracting with independent truckers to haul some of its coal, causing the earnings of a number of its drivers, who were paid on a tonnage basis, to drop.

On January 3, 1979 the General Counsel of the NLRB issued a formal complaint and notice of hearing on the charges of unfair labor practices. On January 4, 1979 the regional director of the NLRB filed a petition in the district court seeking "appropriate injunctive relief pending the final disposition of the matters involved herein pending before the Board. . . . " The petition stated that the regional director had reasonable cause to believe C & W had engaged in a number of unfair labor practices which were enumerated and described in detail. It also stated that important purposes of the Act would be frustrated if C & W were not restrained prior to a determination by the Board and enforcement of its orders pursuant to regular proceedings.

The district court conducted a hearing on the petition on January 19, 1979. Four witnesses testified and an affidavit of the president and sole stockholder of C & W was admitted in evidence. Thereafter the district judge filed an opinion in which he found that an appropriate bargaining unit consisted of all truck drivers employed by C & W at Lisbon and that at least 16 of the 24 drivers had signed authorization cards which "unambiguously declared" their selection of FASH as their exclusive collective bargaining representative. After stating that C & W refused to recognize FASH for purposes of collective bargaining "beginning October 1, 1978 and every subsequent day," the opinion continued:

Beginning on October 1, 1978 and continuing to the present day, the Company has engaged in many actions designed to destroy the majority status of the Union and discourage the truck drivers from attempting in the future to bring any other outside union into the Company. These actions include: threats of business closure; interrogation of employees concerning union membership, activities, and sympathies; numerous declarations that the Company would never recognize a union; threats of discharge from employment because of union activities; promise and grant of benefits to persuade employees to abandon the Union and any future attempt to unionize; direct dealing with the employees to discourage unionization; the sale of trucks and threats of the sale of trucks, which would result in loss of employment, in reaction to the union-organizing activities; solicitation of grievances by the Company to discourage union activities; giving the appearance of surveillance over the employees' union activities; formation of an unnamed employee committee to supplant the outside Union, and domination or financial support of this committee; apparent discharge of employees who were leaders in the organization of the union at the Company; reprisals, such as assignment to more arduous work or sale of trucks, against certain employees because of their leadership in the union-organizing activities; coercion to persuade employees to abandon the Union; and refusal to bargain with the Union on matters of pay, hours, conditions of employment or the sale, or advertising for sale, of trucks.

The district judge found that the actions of C & W resulted in the strike's being broken and the union's majority being dissipated within one week from the initial demand by FASH for recognition. He further found that C & W had continued "to take action to insure that the truck drivers will never again attempt to organize into a union." The action referred to was the sale of two trucks and ongoing attempts to sell the rest. Finding that there was reasonable cause to believe C & W had violated sections 8(a)(1), (2), (3) and (5) of the Act, the court further determined that the issuance of an injunction was just and proper. The order which the district court entered enjoined C & W from engaging in a specified list of actions found by the court to be unfair labor practices and from any other actions which violated the Act. C & W was specifically enjoined from selling trucks except as part of an agreement with FASH. Finally, C & W was directed to bargain with FASH as exclusive representative of its truck drivers.

The sole standard for issuance of a temporary injunction pursuant to section 10(j) is contained in the requirement that the court to which the petition is addressed grant such temporary relief "as it deems just and proper." Thus it is a matter committed to judicial discretion. Before determining to grant relief, however, the court must find that there is reasonable cause to believe that unfair labor practices have been committed. The "reasonable cause" requirement is stated explicitly in section 10(L) ² of the Act, but has been held consistently to be a requirement for a section 10(j) injunction as well. Seeler v. Trading Post, Inc., 517 F.2d 33 (2d Cir. 1975); Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185 (5th Cir. 1975), Cert. denied, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385 (1976); Minnesota Mining & Manufacturing Co. v. Meter, 385 F.2d 265 (8th Cir. 1967); Angle v. Sacks, 382 F.2d 655 (10th Cir. 1967). This court held in American Federation of Radio & Television Artists v. Getreu, 258 F.2d 698, 699 (6th Cir. 1958), that its review of an order granting an injunction in a section 10(L) case "is further confined . . . to determining whether the district court's finding of reasonable cause was clearly erroneous." See also, Hirsch v. Building & Construction Trades Council, 530 F.2d 298, 303 (3d Cir. 1976). Other courts agree that this is also the proper standard for review of this facet of a section 10(j) case. (citations, supra).

C & W has not seriously argued that the finding of reasonable cause was clearly erroneous. In its brief it presented a statement of facts, which if accepted by the district court, would have supported a finding of no reasonable cause. When closely scrutinized the arguments of C & W claim nothing more than that there was a conflict in the evidence. This does not address the question of whether there was substantial evidence on the other side. However, examination of the record on appeal reveals an abundance of evidence from which the reasonable cause determination could have been made. The regional director was not required to prove the commission of unfair labor practices; that is a determination finally to be made by the Board pursuant to its regular procedures. As the court said in Hirsch v. Building & Construction Trades Council, supra, 530 F.2d at 302, the burden of proof on the regional director is relatively insubstantial when he seeks a temporary injunction. We conclude that the petitioner met this burden in the present case and that the reasonable cause finding is not clearly erroneous.

The more serious arguments on behalf of C & W relate to the remedy chosen by the district court. It asserts that no injunction should have issued because the acts complained of occurred during a very brief period and there was no evidence of ongoing unfair labor practices. With respect to specific provisions of the injunction, C & W contends that an interim bargaining order should not issue in a section...