NLRB v. Acker Industries, Inc.

• Decision Date: 16 May 1972
• Docket Number: No. 71-1176.,71-1176.
• Citation: 460 F.2d 649
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ACKER INDUSTRIES, INC., Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

460 F.2d 649 (1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ACKER INDUSTRIES, INC., Respondent.

No. 71-1176.

United States Court of Appeals, Tenth Circuit.

May 16, 1972.

Stephen J. Solomon, Washington, D. C. (Eugene G. Goslee, Acting General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Charles N. Steele and Steven R. Semler, Attorneys, N. L. R. B., on the brief), for petitioner.

Edward E. Soule, Oklahoma City, Okl. (John C. Harrington, Jr., Oklahoma City, Okl., on the brief), for respondent.

Before MURRAH, SETH and BARRETT, Circuit Judges.

SETH, Circuit Judge.

This case is before the court upon application of the NLRB for enforcement of its order against Acker Industries, Inc.

Acker Industries is an Oklahoma corporation which manufactures brakeshoes for railroad cars at its Wewoka plant, there employing approximately thirty persons. In April 1969, the company hired Mr. Henry Streater as its sole truck driver. When not busy driving the truck, Mr. Streater was to have helped out where needed in the plant. In July 1969, Streater's interest in union representation became active, and by the end of the month he and a co-worker had gotten all but one of the unit employees to sign authorization cards. On July 29th, the union representative informed Mr. Webb, the company manager, that the union represented a majority of the employees; he demanded recognition and bargaining and suggested a meeting on August 4th. Webb declined recognition and told the union representative to contact the company's counsel. At an employee meeting on August 9th stewards were elected, and it was agreed that if any employee was discharged all would go out on strike.

On August 12th, Streater went to pick up the company truck in Oklahoma City, where it had been undergoing extensive repairs. Earlier, a repair list had been drawn up by Streater at Webb's direction, including among other items repair of the truck's inoperative air horn, a horn in addition to the truck's regular horn. When Streater arrived at the shop in Oklahoma City the horn had not been fixed, and after he and the shop mechanic unsuccessfully attempted to fix it, Streater ordered that it be replaced with a new one. He returned to the company office where he left the bill for all the repairs. On August 13th, Streater was discharged, being told that it was for dissatisfaction with his work and for the unauthorized purchase of the horn. He offered to pay for the horn but was refused.

When the union stewards learned of Streater's discharge they called on Webb for an explanation. Webb replied that the discharge had nothing to do with the union. The following day all but one of the plant employees walked out in protest. Webb refused to reinstate Streater, and the strike continued. On August 26th, the employees tendered an unconditional offer to return to work, but by then they all had been replaced.

On September 29, 1969, the Board's Regional Director in Fort Worth issued a complaint charging that the company's behavior constituted multiple unfair labor practices. A hearing thereon was scheduled for late October, but in the meantime the Board brought an action against Acker Industries in the United States District Court seeking temporary injunctive relief under section 10(j) of the Act, 29 U.S.C. § 160(j), pending final Board action. The relief sought was of essentially the same design as that prayed for in the section 10(b) complaint; specifically, the District Court was asked (1) to order Acker to reinstate Mr. Streater, (2) to order Acker to reinstate the strikers who had been permanently replaced, and (3) to order Acker to recognize and bargain with the union. The United States District Court held a full hearing and later it filed a memorandum opinion in which it was stated that Acker was not guilty of unfair labor practices, and findings to that effect were made. Acker immediately applied to the trial examiner for leave to amend its answer to plead the section 10(j) findings as binding by collateral estoppel or to reopen the record in the section 10(b) hearing just concluded to receive a copy of the memorandum opinion. The trial examiner refused. The Board concluded that the company violated section 8(a)(1) of the Act by threatening its employees with plant closure. It was also found that Streater's discharge and the company's refusal to reinstate the protesting strikers constituted violations of section 8(a)(3), and that the company violated section 8(a)(5) in failing to bargain with the union. The Board's order requires reinstatement of Streater and his co-workers, allows for back pay, and provides for recognition and bargaining.

The respondent argues that the United States District Court's findings, conclusions, and judgment in the section 10(j) injunction action are binding on the Board under the doctrine of estoppel by judgment, citing Gaitan v. United States, 295 F.2d 277 (10th Cir.), and similar cases. It urges that management made no threat of plant closure, that the Board's finding that Streater was discharged because of his union activity is not supported by the record, and that the strikers were not entitled to reinstatement because the strike was not an unfair labor strike. It is further argued that it was inappropriate for the Board to have ordered bargaining when, under the Gissel doctrine, Acker was entitled to an election. The Board argues that evidence on the record as a whole substantiates the findings and that the bargaining order was within its remedial authority.

Under section 10(j) it is contemplated that a district court grant injunctive relief if the Board establishes reasonable cause to believe that the Act has been violated, and it appears that the remedial purposes of the Act would be frustrated unless relief pendente lite is granted. Angle v. Sacks, 382 F.2d 655 (10th Cir.). This is the purpose of the proceeding, and the extent of the relief which may therein be sought. The respondent asserts that the Board was obligated to accept in the section 10(b) proceedings the District Court's findings in the section 10(j) proceedings and to reach its conclusions accordingly. It is not the doctrine of res judicata that is relied upon; instead, respondent carefully distinguishes between res judicata and collateral estoppel, conceding the inapplicability of the former. See NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951).

Ordinarily, findings made on motion for preliminary injunction, even though they relate in whole or in part to merits of the case, are not determinative of the issues at a subsequent trial. Bursten v. Phillips, 351 F.2d 616 (9th Cir.); People of Colorado v. District Court, 207 F.2d 50 (10th Cir.). The same rationale applies to determinations in cases such as this. The proceedings under either section 10(j) or section 10(l) are interlocutory and are not final adjudications as to whether an unfair practice has taken place. Lawrence Typographical Union 570 v. Sperry, 356 F.2d 58 (10th Cir); Graham v. Retail Clerks Local 57, AFL-CIO, 188 F.Supp. 847 (D. Mont.1960); Costentino v. Masters, Mates & Pilots, AFL-CIO Local 28, 37 L.C. 65,641 (8th Cir.); NLRB v. Carpenters Local 269, 39 L.C. 66,339 (7th Cir.); NLRB v. Local 74, Carpenters Bhd., 181 F.2d 126 (6th Cir.); NLRB v. Denver Building & Construction Trades Council, supra; Local 74, Carpenters Union v. NLRB, 341 U.S. 707, 71 S.Ct. 966, 95 L.Ed. 1309 (1951). Of course, it would be chaotic if procedural rules permitted conflicting findings of fact in equivalent hearings on the same issues. Here, however, the hearings are not equivalent, and it is recognized that the section 10(j) injunction hearing has a limited evidentiary scope and limited purpose. It is not intended to determine which litigant should ultimately prevail. Douds v. Local 294, International Bhd. of Teamsters, 75 F.Supp. 414 (N.D.N. Y.1947). It is further recognized that the requisite proof on the basic issues in a section 10(b) hearing is more exacting than in a section 10(j) injunctive hearing. Evans v. International Typographical Union, 76 F.Supp. 881 (S.D.Ind. 1948); McLeod v. Local 27, Paper Products & Misc. Chauffeurs, 212 F.Supp. 57 (E.D.N.Y.1962). While it is true that section 10(j) applications are frequently handled by affidavit, we find no significance in the distinction urged which suggests that section 10(j) applications decided on hearing and briefs should be treated as tantamount to a section 10(b) hearing because there remains a categorical difference between the nature of an...