Pye v. Teamsters Local Union No. 122

• Decision Date: 07 June 1995
• Docket Number: No. 95-1331,95-1331
• Citation: 61 F.3d 1013
• Parties: 149 L.R.R.M. (BNA) 3089, 64 USLW 2108, 130 Lab.Cas. P 11,393 Rosemary PYE, Regional Director, Etc., Petitioner, Appellee, v. TEAMSTERS LOCAL UNION NO. 122, Respondent, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1013

61 F.3d 1013

149 L.R.R.M. (BNA) 3089, 64 USLW 2108,

130 Lab.Cas. P 11,393

Rosemary PYE, Regional Director, Etc., Petitioner, Appellee, v. TEAMSTERS LOCAL UNION NO. 122, Respondent, Appellant.

No. 95-1331.

United States Court of Appeals First Circuit.

Heard June 7, 1995.

Decided Aug. 8, 1995.

Stephen R. Domesick, Boston, MA, for appellant.

Corinna L. Metcalf, Deputy Asst. Gen. Counsel, with whom Frederick Feinstein, Gen. Counsel, Ellen A. Farrell, Asst. Gen. Counsel, and Barry J. Kearney, Acting Asst. Gen. Counsel, Washington, DC, were on brief, for appellee.

Before SELYA and CYR, Circuit Judges, and SCHWARZER, ^* Senior District Judge.

SELYA, Circuit Judge.

This appeal features an interlocutory injunction issued on the authority of section 10(l ) of the National Labor Relations Act (NLRA), barring a labor union's innovative practice of conducting "group shop-ins" at secondary businesses (retail liquor outlets) as an outgrowth of its grievance with a primary employer (a beer distributor). ¹ After carefully considering the parties' positions in light of the pertinent authorities, we affirm the district court's order in all respects.

I. THE FACTS AND THE PROCEEDINGS BELOW

The facts are set out in the district court's opinion, see Pye v. Teamsters Local Union No. 122, 875 F.Supp. 921, 923-24 (D.Mass.1995), and it would serve no useful purpose to rehearse them here. We content ourselves with a decurtate summary, presented in a manner that recognizes the statutory edge enjoyed by petitioner-appellee, the Regional Director of the National Labor Relations Board (NLRB or Board), in connection with the resolution of disputed factual issues and the inferences that may be drawn therefrom.

In November of 1994, respondent-appellant Teamsters Local Union No. 122 (the Union), then embroiled in a labor dispute with August A. Busch & Co. of Massachusetts, Inc. (Busch), organized three group shopping trips. During each outing, Union members descended, in droves and in concert, upon a designated retail establishment and engaged in multiple rounds of penny-ante purchasing, buying small, inexpensive items such as packs of chewing gum or bags of potato chips and paying for them (more often than not) with bills of large denomination. The sequelae were predictable: overcrowded parking lots, congested aisles, long checkout lines, and an exodus of regular customers. Although some of the group shoppers adorned themselves with Union symbols, the record contains virtually no proof of objectively expressive activity. More particularly, we can find no evidence suggesting that the Union, through group shopping, made any discernible attempt to communicate a defined message to the public. ²

The three shop-ins, each involving a different retailer engaged in commerce, occurred at different locations in Massachusetts. The first incident transpired on November 17, when a band of approximately 70 Union members invaded the premises of Kappy's Liquors. The group shopping (which respondent prefers to call "affinity group shopping" or "associational shopping") persisted for some 45 minutes. The record reflects that at least one customer, apparently discouraged by the crush of Union members, left without transacting any business. The second shop-in occurred on November 23 at Wollaston Wine. This event also lasted about 45 minutes. Approximately 125 Union members participated. The third incident took place on November 25 at the liquor department of Price Costco, a discount house. It involved 50 or so Union members. The record does not pinpoint its duration. All three episodes began late in the afternoon (a prime time in the package store trade), and the latter two incidents occurred on the days before and after the Thanksgiving holiday (days that customarily produce substantial sales for liquor retailers). The record reveals that on at least two of the occasions store managers complained to a Union official who was on the premises, deploring the disruptive effects of the practice on their business. On the third occasion, the store owner apparently took his concerns directly to Busch.

Busch displayed little affinity for the Union's newly contrived stratagem. It complained to the Regional Director who, in turn, initiated an administrative adjudicatory process to examine whether the group shopping constituted an unfair labor practice prohibited by NLRA Sec. 8(b)(4)(ii)(B), 29 U.S.C. Sec. 158(b)(4)(ii)(B) (1988). The Regional Director theorized that, because the Union's actual labor dispute was with the primary employer, Busch, section 8(b)(4)(ii)(B) expressly prohibited it from trying to impair the relationships of secondary businesses (the retail stores) with Busch. Resisting this line of reasoning and denying any wrongdoing, the Union asseverated that these shop-ins were efforts to publicize its grievance with Busch, and were thus beyond the statute's proscriptive reach. The Union also asseverated that, in the end, the group shopping actually benefitted the retailers by generating hundreds of dollars in sales.

The Regional Director refused to buy the Union's wares. On December 1, she invoked section 10(l ) and petitioned for temporary injunctive relief in the federal district court asserting that she had reasonable cause to believe that the associational shopping amounted to an illegal secondary boycott because its real purpose was to force the retailers to cease purchasing beverages from Busch. The district court, perceiving no need for an evidentiary hearing, ³ found for the Regional Director. See Pye, 875 F.Supp. at 925-28. In due course, the court entered a decree that constitutes the actual injunction. Its key provisions are set out in the margin. ⁴ This appeal ensued.

II. THE LAW AND ITS APPLICATION

The so-called labor injunction has been among the most controversial landmarks dotting the historical landscape of American labor law. See generally Felix Frankfurter & Nathan Greene, The Labor Injunction (1930); Clarence E. Bonnet, The Origin of the Labor Injunction, 5 S.Cal.L.Rev. 105 (1931); Eileen Silverstein, Collective Action, Property Rights, and Law Reform: The Story of the Labor Injunction, 11 Hofstra Lab.L.J. 97 (1993). The section 10(l ) injunction is a special species of the labor injunction, ⁵ designed to halt, inter alia, secondary activity that the Regional Director believes is in violation of NLRA Sec. 8(b)(4)(ii)(B) until the NLRB can consider the charges and reach a decision on the merits. The special nature of the section 10(l ) injunction informs our analysis of the case.

A. Standards of Review.

The standards of review applicable to appeals from district court decisions arising under section 10(l ), whether granting or denying the requested relief, are extremely deferential. We review the lower court's factual findings for clear error; we review its rulings of law de novo; and we review its ultimate conclusion, authorizing or withholding the requested relief, for abuse of discretion. See Hoeber v. Local 30, United Slate, Tile & Composition Roofers, Etc., 939 F.2d 118, 123 (3d Cir.1991); Union de Tronquistas de P.R., Local 901 v. Arlook, 586 F.2d 872, 876 (1st Cir.1978); see also Asseo v. Centro Medico Del Turabo, Inc., 900 F.2d 445, 450 (1st Cir.1990) (explicating identical standards under a corollary relief provision, NLRA Sec. 10(j), 29 U.S.C. Sec. 160(j)); Asseo v. Pan Am. Grain Co., 805 F.2d 23, 25 (1st Cir.1986) (same); see generally George Schatzki, Some Observations About the Standards Applied to Labor Injunction Litigation Under Sections 10(j) and 10(l) of the National Labor Relations Act, 59 Ind.L.J. 565, 575-76 (1983) (noting these standards of review and the striking pattern of appellate deference under section 10(l )).

Our level of deference is heightened because we are perched on the second tier of review vis-a-vis the Regional Director's assertion of reasonable cause. The district court occupies the first tier, and just as that court must itself defer in significant measure to the evaluative judgments of the Regional Director, see, e.g., Union de Tronquistas, 586 F.2d at 876, so, too, must we defer to the district court. ⁶ Thus, in this doubly sheltered enclave, the judicial task is generally confined to weeding out wholly arbitrary or thoroughly insupportable petitions for relief. See Squillacote v. Graphic Arts Int'l Union, 540 F.2d 853, 859 (7th Cir.1976).

Of course, an important reason undergirding the deferential standard of judicial review in section 10(l ) cases is that neither the district court nor the court of appeals is adjudicating the merits, as such, to determine whether an unfair labor practice occurred. To the contrary, the courts' role at this stage is merely to supply a stopgap, that is, to palliate a likely violation detected by the Regional Director "pending the final adjudication of the Board with respect to such matter." 29 U.S.C. Sec. 160(l ). Consequently, a decision in a section 10(l ) proceeding is circumscribed in both time and scope, and any relief that may be granted is effective only while the related unfair labor practice charge is pending before the NLRB. ⁷ See Sears, Roebuck & Co. v. Carpet, Linoleum, Soft Tile & Resilient Floor Covering Layers, 397 U.S. 655, 658-59, 90 S.Ct. 1299, 1301-02, 25 L.Ed.2d 637 (1970) (per curiam); Walsh v. International Longshoremen's Ass'n, 630 F.2d 864, 868 (1st Cir.1980). Given the design of the statute, the agency expertise involved, and the two-tiered structure of review, a party appealing from an order granting or refusing a temporary injunction pursuant to section 10(l ) confronts the sobering prospect that most battles over the appropriateness of such redress will be won or lost long before appellate review takes hold.

B. Standard of Analysis.

Congruent with these deferential standards of review, the analytic path to be traversed in a section 10(l ) case is narrower than that typically travelled in the course of...