Schaub v. Detroit Newspaper Agency

Decision Date06 May 1998
Docket NumberNo. 97-1920,97-1920
Parties135 Lab.Cas. P 10,211 William C. SCHAUB, Regional Director of the Seventh Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellant, v. DETROIT NEWSPAPER AGENCY, d/b/a Detroit Newspapers; The Detroit News Inc.; Detroit Free Press, Incorporated, Respondents-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Ellen A. Farrell, Dep. Asso. Gen. Counsel (argued and briefed), National Labor Relations Board, Judith I. Katz (briefed), Robert E. Omberg (briefed), National Labor Relations Board, Injunction Litigation Branch, Washington, DC, for Petitioner-Appellant.

Jeremy P. Sherman (briefed), Kristin E. Michaels (briefed), Seyfarth, Shaw, Fairweather

& Geraldson, Chicago, IL, James A. Rydzel (briefed), Jones, Day, Reavis & Pogue, Cleveland, OH, Richard F. Shaw (briefed), Timothy B. Dyk (briefed), Daniel H. Bromberg (briefed), Harry I. Johnson, III, Clinton R. Pinyan, Jones, Day, Reavis & Pogue, Washington, DC, Robert M. Vercruysse (briefed), Ann M. Nicklas (briefed), Vercruysse, Metz & Murray, Bingham Farms, MI, for Detroit Newspaper Agency and The Detroit News Inc.

Jeremy P. Sherman (briefed), Kristin E. Michaels (briefed), Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, James A. Rydzel (briefed), Jones, Day, Reavis & Pogue, Cleveland, OH, Richard F. Shaw (briefed), Timothy B. Dyk (briefed), Andrew M. Kramer (argued and briefed), Daniel H. Bromberg (briefed), Harry I. Johnson, III, Clinton R. Pinyan, Jones, Day, Reavis & Pogue, Washington, DC, Robert M. Vercruysse (briefed), Ann M. Nicklas (briefed), Vercruysse, Metz & Murray, Bingham Farms, MI, for Detroit Free Press, Inc.

Samuel C. McKnight (argued and briefed), Marshall J. Widick, Klimist, McKnight, Sale, McClow & Canzano, Southfield, MI, for Amicus Curiae Detroit Mailer Union No. 2040, et al.

Leonard D. Givens (briefed), Martin C. Brook (briefed), Miller, Canfield, Paddock & Stone, Detroit, MI, Steven C. Kahn (briefed), Miller, Canfield, Paddock & Stone, Washington, DC, for Amicus Curiae New Employees.

Before: KRUPANSKY, NELSON, and BATCHELDER, Circuit Judges.

OPINION

DAVID A. NELSON, Circuit Judge:

A regional director of the National Labor Relations Board, acting on behalf of the Board, here appeals the denial of a petition for temporary injunctive relief sought pursuant to § 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j). The question that we view as dispositive of the appeal is whether the district court abused its discretion in concluding that the Board had failed to show that the temporary relief sought--an order requiring immediate reinstatement of striking newspaper employees whose jobs had long since been filled by permanent replacements--would be "just and proper" within the meaning of those terms as used in the Act. Finding no abuse of discretion, we shall affirm the denial of the requested injunction.

I

Respondents Detroit News and Detroit Free Press each published a daily metropolitan newspaper in Detroit, Michigan, prior to 1989. The two companies combined their non-editorial operations in 1989 under a joint operating agreement authorized by the Newspaper Preservation Act, 15 U.S.C. § 1803. Respondent Detroit News Agency, a partnership formed pursuant to the agreement, performs all non-editorial functions for both publishers, while each editorial department remains independent. It will be convenient for us to refer to the three respondents collectively as "the papers" or "the newspapers."

In 1992 the papers entered into three-year collective bargaining agreements with unions representing employees in ten different bargaining units. Prior to the expiration of the agreements on April 30, 1995, new contracts had been reached with four of the unions. Negotiations with the remaining unions were not crowned with success, and more than 2,000 employees went out on strike in mid-July of 1995. The strike--which the Board's Regional Director contends was caused, in part, by unfair labor practices committed by the papers in the course of their negotiations--was to prove long and bitter. The unions attempted to shut the papers down, but never succeeded in this effort.

In the summer of 1995 the papers began hiring permanent replacements. Close to 1,280 replacements have been hired, we are told, and the percentages of racial minorities and women on the payroll appear to have increased substantially as a result.

During 1995 the unions filed a number of unfair labor practice charges relating to the hiring of permanent replacements and (as to the Detroit News and the Agency) a variety of other matters as well. The Board's General Counsel issued complaints on these charges, asserting among other things that the strike was caused by the papers' alleged unfair labor practices and that the hiring of permanent replacements was improper. A consolidated amended complaint issued by the General Counsel on January 22, 1996, asked the Board for an order directing the papers, upon receipt of an unconditional return-to-work offer, to reinstate all of the strikers and discharge the permanent replacements if necessary. (Such relief would be available, under governing law, if the strike was an "unfair labor practice strike," but not if it was an "economic strike.")

In April of 1996 the case went to administrative trial on the General Counsel's fourth consolidated amended complaint--"Complaint I," as the district court was subsequently to call it. In June of 1997, after lengthy hearings, the administrative law judge before whom the proceedings had been held issued a decision and recommended order finding, among other things, that the strike was an unfair labor practice strike. The newspapers took exception to the ALJ's recommendation, and we are told that briefing before the Board itself has been completed.

In February of 1997, meanwhile, the unions presented unconditional return-to-work offers. Maintaining that the strike was an economic strike, the newspapers refused to discharge the permanent replacements; strikers were offered reinstatement only as vacancies occurred in the normal course of business. By July 22, 1997, the record indicates, the papers had offered reinstatement to approximately 300 strikers. Approximately 80 percent accepted the offers and returned to work.

On July 2, 1997--almost two years after the strike began, and 18 months after the General Counsel first asked the Board for a conditional reinstatement order--the General Counsel issued an amended complaint ("Complaint II" in the district court's terminology) based on charges that the papers had committed unfair labor practices by not granting immediate reinstatement to all strikers. 1 The complaint contained a request for the Board to order the newspapers immediately to reinstate all unfair labor practice strikers, displacing if necessary any replacement employees hired since July 15, 1995. Administrative adjudication of Complaint II has not yet been completed.

On July 7, 1997, acting on authorization granted by the Board a week earlier, Regional Director William C. Schaub filed a petition with the district court seeking injunctive relief under § 10(j) of the Act pending the Board's final disposition of Complaint II. The petition alleged that it was "essential, 2 just, proper and appropriate" for the court to order reinstatement of the strikers pendente lite. The theory advanced in support of this proposition was that the continued use of replacement workers in lieu of strikers who had offered to return to work would "irreparably damage the integrity of the collective bargaining process and [might] ultimately result in an irreparable dissipation of employee support for the Unions, by the scattering of the alleged discriminatees during Board litigation...."

In an opinion and order entered on August 15, 1997, the district court denied the request for injunctive relief. The petition was dismissed, and this appeal followed.

II

Temporary injunctive relief may not be granted under § 10(j) unless the district court finds both that there is reasonable cause to believe that the alleged unfair labor practice occurred and that the relief sought would be "just and proper" on the facts presented. See Calatrello v. "Automatic" Sprinkler Corp. of Amer., 55 F.3d 208, 212 (6th Cir.1995); Kobell v. United Paperworkers Int'l Union, 965 F.2d 1401, 1406 (6th Cir.1992). In the case at bar the district court was not persuaded that either finding would be justified.

We deem it unnecessary to address the "reasonable cause" issue. Whether or not the district court decided that issue correctly, in our view, the court did not abuse its discretion in deciding the "just and proper" issue as it did.

The "just and proper" inquiry, our caselaw teaches, turns primarily on whether a temporary injunction is necessary "to protect the Board's remedial powers under the [National Labor Relations Act]...." "Automatic" Sprinkler, 55 F.3d at 214, quoting earlier cases. As we have had occasion to observe in connection with § 10(l)--and the observation is equally applicable to § 10(j)--"[c]ourts must be mindful that 'the relief to be granted is only that reasonably necessary to preserve the ultimate remedial power of the Board and is not to be a substitute for the exercise of that power.' " Gottfried v. Sheet Metal Workers' Int'l Ass'n, Local Union No. 80, 927 F.2d 926, 928 (6th Cir.1991), quoting Gottfried v. Frankel, 818 F.2d 485, 494 (6th Cir.1987), a §...

To continue reading

Request your trial
14 cases
  • Ahearn v. Jackson Hosp. Corp.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • December 5, 2003
    ... ... were placed on a local radio station and published in the newspaper ...         After the strike, Gabbard again reminded the ... relief with respect to such practices would be "just and proper." Schaub v. West Mich. Plumbing & Heating, Inc., 250 F.3d 962, 969 (6th Cir.2001) ... See, e.g., Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d 26 (6th Cir.1988); Gottfried v. Sheet Metal ... Detroit Newspaper Agency, 154 F.3d 276, 279 (6th Cir.1998) (citing Gottfried v. Sheet Metal ... ...
  • Glasser v. Heartland - University of Livonia, MI, Case No. 09-10721.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • April 7, 2009
    ... ... Detroit, MI, for Plaintiff ...         Clifford H. Nelson, Jr., ... See Schaub v. Detroit Newspaper Agency, 984 F.Supp. 1048, 1051-52 (E.D.Mich.1997) ... ...
  • Henderson v. Bluefield Hosp. Co.
    • United States
    • U.S. District Court — Southern District of West Virginia
    • September 20, 2016
    ... ... " Id. ( quoting Schaub v. Detroit Newspaper Agency , 154 F.3d 276, 279 (6th Cir. 1998) ) ... ...
  • Muffley ex rel. N.L.R.B. v. Spartan Mining Co.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • July 1, 2009
    ... ... and is not to be a substitute for the exercise of that power." Schaub v. Detroit Newspaper Agency, 154 F.3d 276, 279 (6th Cir.1998) (quotation ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT