Retail Clerks Union v. Food Employers Council, Inc.

• Decision Date: 23 December 1965
• Docket Number: No. 20201.,20201.
• Citation: 351 F.2d 525
• Parties: RETAIL CLERKS UNION, LOCALS 137, 324, 770, 899, 905, 1167, 1222, 1428 AND 1442, Appellants, and Ralph E. Kennedy, Regional Director of the 21st Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Appellant, v. FOOD EMPLOYERS COUNCIL, INC., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

351 F.2d 525 (1965)

RETAIL CLERKS UNION, LOCALS 137, 324, 770, 899, 905, 1167, 1222, 1428 AND 1442, Appellants, and Ralph E. Kennedy, Regional Director of the 21st Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Appellant, v. FOOD EMPLOYERS COUNCIL, INC., Appellee.

No. 20201.

United States Court of Appeals Ninth Circuit.

October 19, 1965.

Rehearing Denied December 23, 1965.

William B. Irvin, Gilbert, Nissen & Irvin, Beverly Hills, Cal., for appellants Retail Clerks Union, Locals 324, 899, 1167, 1428 and 1442.

George L. Arnold, Kenneth M. Schwartz, Robert M. Dohrmann, Arnold, Smith & Schwartz, Los Angeles, Cal., for appellants Retail Clerks Union Locals 770, 137, 905 and 1222.

Joseph M. McLaughlin, Los Angeles, Cal., for appellee Food Employers Council, Inc.

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Julius G. Serot, Asst. Gen. Counsel, Marvin Roth, Frank H. Itkin, Attorneys, Washington, D. C., for appellant N. L. R. B.

Charles K. Hackler, Julius Reich, Brundage & Hackler, Los Angeles, Cal., amici curiæ Jt. Council of Teamsters No. 42.

Carl M. Gould, Stanley E. Tobin, Hill, Farrer & Burrill, Los Angeles, Cal., amici curiæ Amer. Research Merchandising Inst., U. S. Servateria Corp., and Westco Merchandising Co.

Before BARNES, HAMLIN and MERRILL, Circuit Judges.

BARNES, Circuit Judge.

This is an appeal by the Regional Director of the NLRB and various locals of the Retail Clerks Union from a district court order granting a temporary injunction, pursuant to a petition by the Regional Director, to enjoin the commission of unfair labor practices by the Clerks Union. Jurisdiction of the district court was based on Section 10(l) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(l). This court has jurisdiction of the appeal from the grant of a temporary injunction by the district court under 28 U.S.C. § 1292(a) (1).

I. STATEMENT OF FACTS

The underlying controversy in the present appeal stems from a collective bargaining agreement of March 14, 1964, between the Food Employers Council (appellee here) and the Retail Clerks Union (appellant here) which became effective April 1, 1964. Article I of this agreement required the employers to cease doing business with, or selling the products of, various third parties unless those third parties became members of the Clerks Union and bound themselves under the agreement. The Joint Council of Teamsters No. 42, American Research Merchandising Institute, U. S. Servateria Corporation and Wesco Merchandising Co. (all amici curiae here) lodged a complaint with the NLRB on May 7, 1964, alleging that these provisions of Article I constituted an illegal "hot-cargo" agreement in violation of Section 8(e) of the National Labor Relations Act, as amended. On June 30, 1964, the Regional Director filed a petition in the district court requesting a temporary injunction pursuant to Section 10(l) of the National Labor Relations Act, alleging that he had reasonable cause to believe that Article I of the agreement contained provisions which violated Section 8(e) of the National Labor Relations Act. On the same day, June 30, 1964, the Regional Director and the Clerks Union entered into a stipulation that the latter would refrain from unfair practices under the April 1, 1964 agreement, pending determination of the validity of the agreement by the NRLB This stipulation was approved by the district court on the same day, June 30, 1964. The petition for temporary injunction was dismissed on December 3, 1964.

Meanwhile, on November 10, 1964, Local 770 of the Clerks Union had demanded arbitration with the employers of the April 1, 1964, agreement, and on November 24, 1964, had filed suit to compel arbitration in Los Angeles County Superior Court. The Regional Director considered this attempt to compel arbitration a violation of the June 30, 1964 stipulation with the Clerks Union, and that it was itself, a further violation of Section 8(e) of the National Labor Relations Act. On January 8, 1965, the Regional Director filed a new verified petition for temporary injunction in the district court, pursuant to Section 10(l) of the National Labor Relations Act. The suit to compel arbitration was subsequently dismissed by the Superior Court, but by that time Local 770 of the Clerks Union and the employers had agreed to another date of arbitration.

Following the second (or January 8th, 1965) petition for temporary injunction, the Clerks Union and the Regional Director again entered into a stipulation, by the terms of which they agreed that arbitration would be permitted as to certain parts of Article I of the collective bargaining agreement which were not alleged to be violative of Section 8(e) of the National Labor Relations Act, subject to the condition that the results of any arbitration would have to be approved by the Regional Director before being put into effect. The new stipulation was filed for approval in the district court and was opposed by the third parties who had originally brought the charges before the NLRB and who appear as amici curiae here. On May 27, 1965, Honorable Peirson Hall, Judge of the United States District Court, Southern District of California, denied approval of the new stipulation. On June 3, 1965, the Regional Director moved for reconsideration, which was also denied, after a hearing before the district court on June 14, 1965. During the course of the June 14, 1965 hearing the parties to the injunction proceeding and the charging parties in the NLRB proceeding were heard with regard to the propriety of enjoining the arbitration proceedings between the Clerks Union and the Employers Council which had been rescheduled for July 5, 1965. The district court determined that the arbitration should be enjoined and instructed the Regional Director to supplement his original petition, which had included a prayer that arbitration of the attacked clauses of Article I of the collective bargaining agreement be enjoined, with a specific prohibition against the forthcoming July 5 arbitration. This was done.

On June 24, 1965, the district court entered a temporary injunction against the Clerks Union pursuant to Section 10(l) of the National Labor Relations Act, which included a prohibition against arbitration of all of Article I of the collective bargaining agreement. After Joint Council of Teamsters No. 42, one of the charging parties in the NLRB proceedings, objected that the injunction was too broad, the district court on June 25, 1965, modified its injunction of June 24th by an order nunc pro tunc (pursuant to Rule 60(a), Fed.R.Civ.P.) to limit the injunction against arbitration to those portions of Article I of the collective bargaining agreement which were in dispute before the NLRB. The Regional Director and the Clerks Union appeal from the injunction as modified.

The appellants petitioned this court for a stay of the injunction, since arbitration was scheduled for July 5, 1965. This petition was denied, but we granted an expedited hearing. By the same order, this court denied the charging parties in the NLRB proceedings permission to intervene as appellees, but granted them permission to appear as amici curiae.

II. TO WHOM WAS THE TEMPORARY INJUNCTION GRANTED?

Appellants, the Regional Director and Retail Clerks Union, contend that the district court erred in granting the injunction because the court did so, not at the request of the Regional Director, but at the request of the private third parties who were the "charging parties" in the NLRB proceedings. Appellants argue that since the Regional Director had changed his position in the district court from a petition for temporary injunction to a request for approval of a stipulation with the Clerks Union, the Regional Director was no longer seeking an injunction, and granting it over his protest constituted the grant of an injunction to private persons in violation of Sections 1, 4 and 7 of the Norris-LaGuardia Act, 29 U.S.C. §§ 101, 104, 107, and the policy of Section 10(l) of the National Labor Relations Act which places in the Regional Director the responsibility for seeking injunctions in Section 8(e) cases.

This argument overlooks the fact that the Regional Director had himself twice petitioned the court for injunctions, regardless of later stipulations with the Clerks Union. Furthermore, Section 10(l) is mandatory, not discretionary, in nature and requires the Regional Director to seek injunctive relief when he has reasonable cause to believe that a Section 8(e) violation has occurred.¹ Hence the Regional Director was obligated to seek the injunction, and did so when he filed the petition for temporary injunction on January 8, 1965, in which he alleged that arbitration, or attempts to compel arbitration of the April 1, 1964 agreement constituted further Section 8(e) violations.

Nor did the district court err in permitting the charging parties to appear and present evidence in support of the injunction. Section 10(l) specifically provides that "Upon filing of any such petition the courts shall cause notice thereof to be served upon any person involved in the charge and such person, including the charging party, shall be given an opportunity to appear by counsel and present any relevant testimony * * *."

Cases relied upon by appellants, such as McLeod for and on Behalf of N. L. R. B. v. Business Machine and Office Appliance Mechanics Conference Board, 300 F.2d 237 (2d Cir. 1962), and NLRB v. Retail Clerks International Association, 243 F.2d 777 (9th Cir. 1956), dealing with the scope of participation to be permitted the charging parties, are inapposite here. In McLeod v. Mechanics Conference the charging party sought to introduce grounds for injunctive relief which were different than and in addition to those relied upon by the Regional Director in his petition to the district court. The court of appeals held that...