N.L.R.B. v. Interstate Dress Carriers, Inc., No. 79-1321

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore ADAMS, GIBBONS and WEIS; GIBBONS; ADAMS
Citation610 F.2d 99
Docket NumberNo. 79-1321
Decision Date22 August 1979
Parties101 L.R.R.M. (BNA) 2986, 86 Lab.Cas. P 11,467 NATIONAL LABOR RELATIONS BOARD v. INTERSTATE DRESS CARRIERS, INC. Cloak and Dress Drivers and Helpers Union Local 102, International Ladies' Garment Workers' Union, Intervenor in D.C., Union Local 20408 United Warehouse, Industrial and Affiliate Trades, Intervenor in D.C. Appeal of NATIONAL LABOR RELATIONS BOARD and Arthur Eisenberg, Plaintiff and Counterclaim Defendants.

Page 99

610 F.2d 99
101 L.R.R.M. (BNA) 2986, 86 Lab.Cas. P 11,467
NATIONAL LABOR RELATIONS BOARD
v.
INTERSTATE DRESS CARRIERS, INC.
Cloak and Dress Drivers and Helpers Union Local 102,
International Ladies' Garment Workers' Union,
Intervenor in D.C.,
Union Local 20408 United Warehouse, Industrial and Affiliate
Trades, Intervenor in D.C.
Appeal of NATIONAL LABOR RELATIONS BOARD and Arthur
Eisenberg, Plaintiff and Counterclaim Defendants.
No. 79-1321.
United States Court of Appeals,
Third Circuit.
Argued May 3, 1979.
Decided July 19, 1979.
As Amended Aug. 22, 1979.

Page 101

Margery E. Lieber, Deputy Asst. Gen. Counsel for Special Litigation (argued), Susan Tepper Papadopoulas, Atty., N. L. R. B., Washington, D. C., for N. L. R. B.

Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for Interstate Dress Carriers, Inc.; Martin London, New York City, argued; Rosen, Gelman & Weiss, Newark, N. J., of counsel.

Ball, Hayden, Kiernan & Livingston, Newark, N. J., for Union Local 20408; Craig H. Livingston, Newark, N. J., argued.

Ernest Allen Cohen, Teaneck, N. J., for Local 102 International Ladies' Garment Workers' Union; Marchi, Jaffe, Cohen, Crystal & Katz, New York City, of counsel.

Before ADAMS, GIBBONS and WEIS, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge:

The National Labor Relations Board and Arthur Eisenberg, Regional Director (the Board) appeal from an order of the District Court for the District of New Jersey enjoining the Board from opening or counting ballots in a representation proceeding, and ordering discovery of facts bearing on the validity of that proceeding. We reverse the grant of injunctive relief.

I. FACTS AND PROCEEDINGS IN THE DISTRICT COURT

On February 13, 1979, the Board applied to the district court, pursuant to § 11(2) of the National Labor Relations Act (NLRA), 29 U.S.C. § 161(2), for an order requiring Interstate Dress Carriers, Inc. (IDC) to obey a subpoena duces tecum issued in connection with a representation proceeding involving IDC employees. The subpoena called for the production of an "Excelsior List" of the names and addresses of all

Page 102

employees in a specified bargaining unit. 1 The representation proceeding involved an effort by Local 20408 of the United Warehouse Industrial and Affiliate Trades Employees Union (Local 20408) to be certified as the bargaining representative for IDC employees in place of Cloak, Dress Drivers and Helpers Union, Local 102, International Ladies' Garment Workers' Union (Local 102), with which IDC had a collective bargaining agreement. The Board's application to the district court disclosed that an election was scheduled for February 21, 1979. On February 14, the district court issued an order directing IDC to show cause why the subpoena duces tecum should not be enforced. IDC appeared before the district court the following day, informed the court of its intention to file an answer and counterclaim, an opposing affidavit, a motion for a temporary injunction and a supporting memorandum of law. At that time IDC requested, and was granted, a one-day adjournment in which to prepare and file its papers.

On February 16, IDC filed an answer and counterclaim in which it admitted the pendency of the representation proceeding and the scheduled election. IDC alleged, however, that the hearings held by Region Twenty-Two of the Board, which culminated in the decision to call an election, were conducted with such procedural irregularities as to deprive IDC of an opportunity to be heard, offer evidence, and examine witnesses. It alleged that if its existing collective bargaining relationship with Local 102 were to be terminated as a result of the election, it would suffer irreparable injury for the redress of which there was no adequate remedy. IDC sought a declaratory judgment that the Board proceedings violated due process and the Administrative Procedure Act, an injunction to prohibit the Board from conducting any election and any proceeding ancillary thereto, and the dismissal of the Board's application to enforce the subpoena.

On February 20, 1979, the trial court entertained argument on IDC's motion for a preliminary injunction against the election scheduled the next day. On the same day, Local 102 and Local 20408 moved to intervene, and Local 102 joined in IDC's request for preliminary relief. Also on February 20, the Board moved to dismiss IDC's counterclaim for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted.

The district court, by order dated February 20, 1979: (1) permitted both unions to intervene; (2) denied the motion for a preliminary injunction against holding the election scheduled on February 21, 1979; (3) denied the Board's motion to dismiss the IDC counterclaim for lack of subject matter jurisdiction "without prejudice to renewal after completion of discovery and pretrial conference"; (4) reserved decision on the Board's application to enforce its subpoena; (5) directed the Clerk of the district court to turn over the Excelsior List, which had been delivered to the Clerk, to the Board's attorney for the purpose of determining eligibility to vote at the February 21, 1979 election; (6) ordered the Board to seal all ballots cast at the election "without opening them or tallying the results" and to "keep them under seal pending the further order of this Court"; (7) ordered that discovery go forward and be completed by May 11, 1979, and that a pretrial conference take place on May 22, 1979. The net effect of this order was to permit the February 21, 1979 election to take place, using an Excelsior List obtained from IDC, but to prevent the Board from counting the ballots or certifying a bargaining agent for at least ninety days thereafter.

The Board filed a notice of appeal on February 26, 1979. It also moved for a stay of the court's injunction and discovery order pending appeal. Meanwhile, IDC and Local

Page 103

102 had moved before the Board for review of the Regional Director's decision to hold an election and for an order impounding the ballots pending decision on their request for review. On March 6, 1979, the Board denied the IDC and Local 102 requests for review and for an impoundment order. On March 9, 1979, these developments were brought to the district court's attention at a hearing on the Board's motion for a stay. Motions for a stay of the order impounding the ballots and for a stay of discovery were denied on March 9, 1979.

II. PROCEEDINGS IN THIS COURT

On March 12, 1979, the Board filed in this Court a motion for a stay pending appeal. By agreement of the parties, depositions of Regional Director Eisenberg and hearing officer Anderson, previously noticed, were adjourned pending our ruling on that motion. IDC also noticed the deposition of Matthew Eason, president of Local 20408, and, when he did not appear, obtained an order from the district court directing that Eason appear, or certain disputed facts would be deemed established against that Local. Local 20408 also moved in this Court for a stay pending appeal. On March 21, we entered orders staying all discovery; but in order not to render moot the appellees' claim that the Board's subpoena should not have been enforced, on April 24, by order of Chief Judge Seitz, we continued in effect the order staying counting of the ballots.

III. PROCEEDINGS IN OTHER COURTS

IDC and others have been charged in an indictment pending in the Eastern District of New York with violations of 18 U.S.C. §§ 1505 and 371. The indictment alleges that IDC and others have attempted to interfere with the Board's representation case, in which the subpoena here in dispute was issued, by bribes and threats intended to induce Local 20408 to withdraw its representation petition. In that proceeding IDC, pursuant to Fed.R.Crim.P. 17, subpoenaed the authorization cards submitted to the Board by Local 20408 in support of its representation petition. The Rule 17 subpoena was resisted by the Board on the ground of privilege. The Board's motion to quash was denied, and the Court of Appeals for the Second Circuit withheld appellate and mandamus relief. United States v. Di Lapi, 595 F.2d 1209 (2d Cir. 1979). The General Counsel continued to resist and was held in contempt. On appeal from that decision, the Second Circuit held that the authorization cards and some other papers bearing upon Local 20408's representative status must be disclosed to the defendants in the criminal case, despite the existence of a recognized privilege against disclosing the identity of employees signing authorization cards. In re John S. Irving, General Counsel, 600 F.2d 1027 (2d Cir. 1979).

The indictment pending in the Eastern District of New York and the related contempt proceedings are claimed by IDC and Local 102 to be relevant to the disposition of this appeal because, these parties contend, they establish that the representation hearings before the Board, in which the subpoena in this case issued, are a sham, instigated at the behest or with the connivance of the prosecutor in the Eastern District of New York.

IV. APPEALABILITY

IDC contends that we should dismiss the Board's appeal for lack of an appealable order. The Board, on the other hand, contends that the February 20, 1979 order is appealable under 28 U.S.C. § 1292(a)(1) as the grant of an injunction, and that, in any event, the district court's assertion of continuing jurisdiction on the basis of a counterclaim over which it lacks subject matter jurisdiction is reviewable pursuant to 28 U.S.C. § 1651.

As we noted above, the form of the district court's order permitted the election to go forward, while preventing the counting of the ballots until after the court had considered the merits of IDC's defense to the subpoena and its counterclaim for injunctive relief against the election. IDC points out, quite correctly, that the district

Page 104

court has not so far expressed...

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40 practice notes
  • Tokarcik v. Forest Hills School Dist., Nos. 80-2844
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 2, 1981
    ...order from which Congress has granted litigants a right to immediate appellate review. See N.L.R.B. v. Interstate Dress Carriers, Inc., 610 F.2d 99, 104 (3d Cir. Recently, the Supreme Court reiterated that "we have construed the statute narrowly to ensure that appeal as of right under § 129......
  • Agricultural Labor Relations Bd. v. Superior Court, No. F025641
    • United States
    • California Court of Appeals
    • August 26, 1996
    ...the Second Circuit has limited its application. (561 F.2d at p. 37.) (See also N.L.R.B. v. Interstate Dress Carriers, Inc. (3rd Cir.1979) 610 F.2d 99, 107; Blue Cross & Blue Shield of Michigan v. N.L.R.B. (6th Cir.1979) 609 F.2d 240, 244-245; J.P. Stevens Emp. v. N.L.R.B. (4th Cir.1978) 582......
  • Nat'l Labor Relations Bd. v. Vista Del Sol Health Servs., Inc., Case Nos. CV 14–03337 MMM (FFMx)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • July 7, 2014
    ...case, act summarily.’ ” N.L.R.B. v. Frazier, 966 F.2d 812, 819 (3d Cir.1992) (citing N.L.R.B. v. Interstate Dress Carriers, Inc., 610 F.2d 99, 112 (3d 2. Whether Congress Has Granted the NLRB the Authority to Investigate The Ninth Circuit in North Bay recognized that “Congress has granted t......
  • Nat'l Labor Relations Bd. v. Vista Del Sol Health Servs., Inc., Case Nos. CV 14–03337 MMM FFMx
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • July 7, 2014
    ...case, act summarily.’ ” N.L.R.B. v. Frazier, 966 F.2d 812, 819 (3d Cir.1992) (citing N.L.R.B. v. Interstate Dress Carriers, Inc., 610 F.2d 99, 112 (3d Cir.1979) ).2. Whether Congress Has Granted the NLRB the Authority to Investigate The Ninth Circuit in North Bay recognized that “Congress h......
  • Request a trial to view additional results
40 cases
  • Tokarcik v. Forest Hills School Dist., Nos. 80-2844
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 2, 1981
    ...order from which Congress has granted litigants a right to immediate appellate review. See N.L.R.B. v. Interstate Dress Carriers, Inc., 610 F.2d 99, 104 (3d Cir. Recently, the Supreme Court reiterated that "we have construed the statute narrowly to ensure that appeal as of right under § 129......
  • Agricultural Labor Relations Bd. v. Superior Court, No. F025641
    • United States
    • California Court of Appeals
    • August 26, 1996
    ...the Second Circuit has limited its application. (561 F.2d at p. 37.) (See also N.L.R.B. v. Interstate Dress Carriers, Inc. (3rd Cir.1979) 610 F.2d 99, 107; Blue Cross & Blue Shield of Michigan v. N.L.R.B. (6th Cir.1979) 609 F.2d 240, 244-245; J.P. Stevens Emp. v. N.L.R.B. (4th Cir.1978) 582......
  • Nat'l Labor Relations Bd. v. Vista Del Sol Health Servs., Inc., Case Nos. CV 14–03337 MMM (FFMx)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • July 7, 2014
    ...case, act summarily.’ ” N.L.R.B. v. Frazier, 966 F.2d 812, 819 (3d Cir.1992) (citing N.L.R.B. v. Interstate Dress Carriers, Inc., 610 F.2d 99, 112 (3d 2. Whether Congress Has Granted the NLRB the Authority to Investigate The Ninth Circuit in North Bay recognized that “Congress has granted t......
  • Nat'l Labor Relations Bd. v. Vista Del Sol Health Servs., Inc., Case Nos. CV 14–03337 MMM FFMx
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • July 7, 2014
    ...case, act summarily.’ ” N.L.R.B. v. Frazier, 966 F.2d 812, 819 (3d Cir.1992) (citing N.L.R.B. v. Interstate Dress Carriers, Inc., 610 F.2d 99, 112 (3d Cir.1979) ).2. Whether Congress Has Granted the NLRB the Authority to Investigate The Ninth Circuit in North Bay recognized that “Congress h......
  • Request a trial to view additional results

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