McLeod v. LOCAL 239, INTERNATIONAL BRO. OF TEAMSTERS, ETC., No. 326

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtWATERMAN and KAUFMAN, Circuit , and DIMOCK
Citation330 F.2d 108
PartiesIvan C. McLEOD, Regional Director of the Second Region of The National Labor Relations Board, for and on behalf of The National Labor Relations Board, Petitioner-Appellee, v. LOCAL 239, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent-Appellant.
Decision Date30 March 1964
Docket NumberNo. 326,Docket 28663.

330 F.2d 108 (1964)

Ivan C. McLEOD, Regional Director of the Second Region of The National Labor Relations Board, for and on behalf of The National Labor Relations Board, Petitioner-Appellee,
v.
LOCAL 239, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent-Appellant.

No. 326, Docket 28663.

United States Court of Appeals Second Circuit.

Argued March 5, 1964.

Decided March 30, 1964.


Julius G. Serot, Asst. General Counsel, N. L. R. B., Washington, D. C. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, and Marvin Roth, Washington, D. C., Attorney, on the brief), for petitioner-appellee.

Charles R. Katz, of Katz & Wolchok, New York City, for respondent-appellant.

Before WATERMAN and KAUFMAN, Circuit Judges, and DIMOCK,* District Judge.

330 F.2d 109

KAUFMAN, Circuit Judge.

Posing a question vital to the prosecutorial machinery of the National Labor Relations Board, this appeal challenges the power of the Board's General Counsel to order that a temporary injunction be sought, when the conduct to be enjoined has initially been found by a regional director not to constitute an unfair labor practice.

By the terms of § 10(l) of the National Labor Relations Act,1 61 Stat. 146, 29 U.S.C. § 160, the "officer or regional attorney of the NLRB to whom the matter may be referred" is authorized to seek a temporary injunction of conduct which he has reasonable cause to believe is in violation of certain specified sections of the Act. Prominent among these is § 8(b) (7) (B), which prohibits organizational and recognitional picketing within twelve months of a valid representational election. In the present case, Abbey Auto Parts Corporation, a wholesale and retail distributor of automobile parts and accessories, filed a complaint with the Board, in which it alleged that the appellant union was engaging in just such illegal picketing. After investigating the matter, the Board's regional director determined that the picketing in question was not for the purpose of securing union recognition or organization, and accordingly declined to issue a complaint on behalf of the Board. As permitted by NLRB regulations,2 Abbey appealed this decision to the Board's General Counsel, who sustained Abbey's appeal and remanded the case to the regional director "with instructions to issue an appropriate complaint." In conformance with these instructions, the regional director promptly issued the complaint and shortly thereafter filed the present petition for a § 10(l) injunction, pending Board action on the allegations of the complaint. After a hearing, Judge Bartels concluded that there was reasonable cause to believe that an 8(b) (7) (B) violation had occurred, and the injunction was issued.

On this appeal, the union seizes upon the precise wording of § 10(l), and vigorously insists that an injunction may be sought only if "the officer or regional attorney to whom the matter may be referred has reasonable cause to believe an 8(b) (7) charge is true." (Emphasis supplied.) Noting that the regional director in the present case initially refused to issue the complaint, and did so only when instructed by the General Counsel, the union maintains that the "officer or regional attorney" did not actually believe in the truth of the charges. Finding the General Counsel's belief in this regard to be irrelevant under the language of § 10(l), the union argues that the District Court was without jurisdiction to issue the temporary injunction.

There is little dispute as to the relevant facts. On April 15, 1963, at the behest of the company, the NLRB found that Abbey had withdrawn from a multi-employer bargaining unit, and scheduled a representation election for Abbey's employees on May 10. Although participating in an April 26 conference which set the ground rules for the balloting, the union wrote to Abbey on May 3, stating that it was withdrawing its demands for

330 F.2d 110
recognition, but would nevertheless picket the company with signs indicating that the shop was non-union. This picketing commenced three days thereafter, and continued until it was enjoined by Judge Bartels. Despite the withdrawal of the union's demands, the election was held on May 10, and Abbey's nine employees voted unanimously against union representation

At the hearing below, four gas station operators who had been customers of Abbey testified that the business representative of appellant union had approached them individually, and had requested that they not deal with the company while the picketing continued. Three of these witnesses further recalled being informed that the union's objective in picketing was organizational; in the words of one, the representative told him that "they were picketing Abbey's because it was a non-union shop and they wanted to unionize it." In addition, Abbey's president testified that he had been approached by one of the pickets, who had identified himself as the brother of the union president, and had asked "when we were going to get together and talk * * * about making a deal as far as signing the contract was concerned." Finally, the evidence revealed that the picketing had stopped or delayed the delivery of goods to Abbey on at least three occasions.

The union did not seek to rebut this evidence, placing no witnesses on the stand, and confining itself to proving that all of the testimony presented below had been...

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7 practice notes
  • Riverside Press, Inc. v. NLRB, No. 25783.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 11, 1969
    ...presumed to be, since he partakes in the prosecutorial functions. See McLeod v. Local 239, Inter. Broth. of Teamsters, etc., 2 Cir., 1964, 330 F.2d 108; NLRB Rules and Regulations, 29 C.F.R. §§ 101.5-101.8, 102.14-102.19. Therefore, the majority of representation decisions are made solely b......
  • Wren v. Merit Systems Protection Bd., No. 80-1667
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 22, 1982
    ...Maritime Union v. National Labor Relations Board, 423 F.2d 625 (2d Cir. 1970) (same); McLeod v. International Brotherhood of Teamsters, 330 F.2d 108 (2d Cir. 1964) (same). Cf. also Turgeon v. Federal Labor Relations Authority, 677 F.2d 937 (D.C.Cir.1982) (same, but involving General Counsel......
  • Mobilab Union, Inc. v. Johansen, Civ. A. No. 84-3689.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • January 21, 1985
    ...182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842 (1967); Contractors Association of Philadelphia v. NLRB, 295 F.2d 526 (3d Cir.1961); McLeod v. IBT, 330 F.2d 108 (2d Cir.1964); National Maritime Union v. NLRB, 423 F.2d 625 (2d Cir.1970); Associated Builders v. Irving, 610 F.2d 1221 (4th Cir.1979); In......
  • Terminal Freight Handling Co. v. Solien, No. 71-1042.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 18, 1971
    ...prosecutorial authority and can override the Regional Director. See McLeod v. Local 239, International Brotherhood of Teamsters, etc., 330 F.2d 108 (2d Cir. 1964). Nonetheless, the General Counsel is not an indispensable party since our decree could effectively grant the relief desired by e......
  • Request a trial to view additional results
7 cases
  • Riverside Press, Inc. v. NLRB, No. 25783.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 11, 1969
    ...presumed to be, since he partakes in the prosecutorial functions. See McLeod v. Local 239, Inter. Broth. of Teamsters, etc., 2 Cir., 1964, 330 F.2d 108; NLRB Rules and Regulations, 29 C.F.R. §§ 101.5-101.8, 102.14-102.19. Therefore, the majority of representation decisions are made solely b......
  • Wren v. Merit Systems Protection Bd., No. 80-1667
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 22, 1982
    ...Maritime Union v. National Labor Relations Board, 423 F.2d 625 (2d Cir. 1970) (same); McLeod v. International Brotherhood of Teamsters, 330 F.2d 108 (2d Cir. 1964) (same). Cf. also Turgeon v. Federal Labor Relations Authority, 677 F.2d 937 (D.C.Cir.1982) (same, but involving General Counsel......
  • Mobilab Union, Inc. v. Johansen, Civ. A. No. 84-3689.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • January 21, 1985
    ...182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842 (1967); Contractors Association of Philadelphia v. NLRB, 295 F.2d 526 (3d Cir.1961); McLeod v. IBT, 330 F.2d 108 (2d Cir.1964); National Maritime Union v. NLRB, 423 F.2d 625 (2d Cir.1970); Associated Builders v. Irving, 610 F.2d 1221 (4th Cir.1979); In......
  • Terminal Freight Handling Co. v. Solien, No. 71-1042.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 18, 1971
    ...prosecutorial authority and can override the Regional Director. See McLeod v. Local 239, International Brotherhood of Teamsters, etc., 330 F.2d 108 (2d Cir. 1964). Nonetheless, the General Counsel is not an indispensable party since our decree could effectively grant the relief desired by e......
  • Request a trial to view additional results

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