NLRB v. AEROVOX CORPORATION OF MYRTLE BEACH, SC, 11652.
| Decision Date | 27 December 1967 |
| Docket Number | No. 11652.,11652. |
| Citation | 389 F.2d 475 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AEROVOX CORPORATION OF MYRTLE BEACH, SOUTH CAROLINA, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
George B. Driesen, Atty., National Labor Relations Board (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Alan D. Eisenberg, Atty., National Labor Relations Board, on motion), for petitioner.
William H. Smith, Jr. (Smith & Smith on reply), for respondent.
Before BOREMAN, CRAVEN and BUTZNER, Circuit Judges.
The National Labor Relations Board moved, pursuant to Section 10(e) of the National Labor Relations Act 29 U.S.C. § 160(e), for enforcement pendente lite of the Board's order directing the Aerovox Corporation of Myrtle Beach, South Carolina, to bargain collectively with the union. The company moved, pursuant to this court's Rule 27, § 8, for an order requiring the Board to correct the certified list of documents that constitute the transcript of proceedings before the Board by filing documents which were omitted.
In December 1966, Local Union 382, International Brotherhood of Electrical Workers, AFL-CIO, filed a petition seeking to represent the company's maintenance employees. The Regional Director, after a hearing, found the following unit of employees appropriate for bargaining:
"All maintenance employees, including setup men and janitors employed at the Employer\'s Myrtle Beach, South Carolina, plant, excluding production employees, office clerical employees, professional employees, guards and supervisors, as defined in the Act."
The company's request for review was denied on February 23, 1967, and an election was held February 24, 1967 which the union won. The union was certified as the exclusive bargaining representative, and on April 4, 1967, it requested the company to bargain. The company refused, and the union filed an unfair labor practice charge on April 12, 1967. A complaint was filed and answered. The Board's General Counsel filed a motion for summary judgment, which the Board granted, finding that the company refused to bargain with the union in violation of § 8(a)(5) and (1) of the Act. The Board ordered the company to bargain collectively with the union upon request.
In August 1967, the Board filed with this court a petition for enforcement. The company answered, praying that the Board's order be set aside. The company contends that the collective bargaining unit was not appropriate, that the Board refused to hold a new hearing in the unfair labor practice proceeding, at which additional evidence could be presented, and that the controlling factor leading to the decision and direction of election was the extent of organization at Aerovox, contrary to the provisions of § 9(c) (5) of the Act 29 U.S.C. § 159(c) (5). The company asserts that only a production and maintenance unit is appropriate.
Section 10(e) of the Act 29 U.S.C. § 160(e) authorizes the Court of Appeals in which an enforcement proceeding is pending to grant "such temporary relief or restraining order as it deems just and proper." No definitive standard for the application of temporary relief has been stated.
Under § 10(j) 29 U.S.C. § 160(j), a district court is empowered to grant to the Board "such temporary relief or restraining order as it deems just and proper." Application may be made for this relief before the Board has reached its decision. Thus, where the standards governing relief under § 10(j) are met, it appears that relief under § 10(e) is also proper.
We are mindful that standards governing the application of § 10(e), which involves the public interest, cannot be fashioned upon principles pertaining to equitable relief in private controversies. See Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 552, 57 S.Ct. 592, 81 L.Ed. 789 (1937). This court, in concert with others, has held that the government is not required to show irreparable injury when it seeks an injunction to give effect to an act of Congress. Shafer v. United States, 229 F.2d 124, 128 (4th Cir. 1956).
As the first prerequisite for relief pending appeal, the Board must establish reasonable cause to believe the Act has been violated. This alone, however, is insufficient to show why the normal processes of court enforcement should not be followed. A second test should be applied. It must appear...
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