Solien v. Miscellaneous Drivers & Helpers U., Loc. No. 610

• Decision Date: 07 June 1971
• Docket Number: No. 20407,20418.,20407
• Citation: 440 F.2d 124
• Parties: Joseph H. SOLIEN, Regional Director of the Fourteenth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. MISCELLANEOUS DRIVERS AND HELPERS UNION, LOCAL NO. 610, Affiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent-Appellee, and Sears, Roebuck and Co., and Terminal Freight Cooperative Association and Terminal Freight Handling Co., Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

440 F.2d 124 (1971)

Joseph H. SOLIEN, Regional Director of the Fourteenth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. MISCELLANEOUS DRIVERS AND HELPERS UNION, LOCAL NO. 610, Affiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent-Appellee, and Sears, Roebuck and Co., and Terminal Freight Cooperative Association and Terminal Freight Handling Co., Appellants.

Nos. 20407, 20418.

United States Court of Appeals, Eighth Circuit.

March 12, 1971.

Certiorari Denied June 7, 1971.

D. J. Sullivan, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., Gerard C. Smetana, Lawrence M. Cohen, Lederer, Fox & Grove, Chicago, Ill., for petitioner, Sears, Roebuck and Co.

Jerry Kronenberg, Borovsky, Ehrlich & Kronenberg, Chicago, Ill., Gerald Tockman, St. Louis, Mo., for petitioners, Terminal Freight Cooperative Association and Terminal Freight Handling Co.

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Julius G. Serot, Asst. Gen. Counsel, Glen M. Bendixsen, Chief of Special Litigation, Michael F. Rosenblum, Atty., N. L. R. B., Washington, D. C., for petitioner-appellee, Joseph H. Solien.

Norman W. Armbruster, Harry H. Craig, St. Louis, Mo., for respondent-appellee, Misc. Drivers and Helpers Union, etc.; Wiley, Craig, Armbruster & Wilburn, St. Louis, Mo., of counsel.

Before GIBSON and BRIGHT, Circuit Judges, and McMANUS, Chief District Judge.^*

Certiorari Denied June 7, 1971. See 91 S.Ct. 2206.

GIBSON, Circuit Judge.

The question presented in this consolidated appeal is whether a charging party in an unfair labor practice complaint before the National Labor Relations Board under § 8(b) (4) (B) of the National Labor Relations Act, 29 U.S.C. § 158(b) (4) (B), which requires the Board Regional Director to file for injunctive relief under § 10(l),¹ is entitled to the status of a full party litigant in the district court injunctive proceeding. And if not, is the charging party entitled to intervene as of right in that proceeding?

The appellants, Sears, Roebuck and Company, Terminal Freight Cooperative Association and Terminal Freight Handling Company,² filed separate charges with the Regional Director of the NLRB alleging that the appellee Union (respondent below) was conducting an illegal secondary boycott against the appellants in violation of § 8(b) (4) (B). After determining that the complaint should issue, the Director filed for injunctive relief in the District Court pursuant to § 10(l).³ Appellants sought to appear as full party litigants or, alternatively, to intervene in the injunctive proceeding. The Regional Director as petitioner and the respondent Union in the injunctive proceeding opposed the appellants appearing as full party litigants or intervening as parties on the stated ground that § 10(l) did not accord to charging parties full rights as party litigants in the injunctive proceeding.

The District Court, Chief Judge James H. Meredith, denied the appellants full party status and denied them the right to intervene, 321 F.Supp 245. However, appellants were permitted a limited appearance: the right to be present with counsel at the hearings, to introduce evidence, to file briefs, to be informed of all actions taken in the case, to keep the court advised of pertinent developments and to receive copies of all documents filed.

The Regional Director, as petitioner in the injunctive proceeding, reached a unilateral settlement stipulation in lieu of injunctive relief with the respondent Union over the objection of the charging parties, the appellants in this appeal. The Court required certain modifications in the settlement stipulation and then approved the stipulation as revised on July 9, 1970.

The Court-approved revised settlement stipulation is thought by the appellants to be inadequate for many reasons and from their viewpoint it might well be. However, the sufficiency or merits of the stipulation are not now before this court nor are the merits of the unfair labor practice charges pending before the Board. The only issue presented on this appeal is the propriety of the District Court's order denying full party status to the appellants in the § 10(l) proceeding.⁴

Following the approval of the revised stipulation in lieu of injunctive relief, the Board sought to dispose of the basic complaint against the Union for unlawful secondary boycott and picketing activity by means of a settlement stipulation purporting to remedy the charged unfair labor practice. On July 17, 1970, appellants filed a complaint in the District Court alleging that the Director had violated their rights under the Act and the Board's rules and regulations by excluding them from settlement discussions and depriving them of essential facts in connection with settlement deliberations, and sought to enjoin the Director from approving any settlement or engaging further in settlement discussions without the informed participation of the charging parties. On July 30, the District Court sustained the Director's motion to dismiss that cause for lack of jurisdiction. The charging parties appealed and sought a temporary stay of the District Court decision pending resolution of the appeal, which is now pending in a separate proceeding. This court granted the stay on August 7, but upon further consideration, vacated the stay on August 10.

On August 11, the charging parties filed in the United States Supreme Court an application for a temporary restraining order staying the District Court's order and temporarily enjoining the Director. This application was denied on August 19. Consequently, the settlement stipulation reached by the Regional Director and the Union dated July 24 is presently before the General Counsel for approval.

I.

We first consider the Union's contention that the issue of the charging party's status in § 10(l) proceedings is now moot since the dispute between the Union and the primary employer, Be-Rite Delivery Service, Inc., has been settled and there is no longer any strike or picketing activity of any kind. The Board at oral argument urged that the case in its present posture is not moot since the General Counsel has not yet approved the settlement stipulation reached by the Regional Director and the Union concerning the unfair labor practice charged. We agree with the Board.⁵

We do not think this case is moot because the probability of repetition of unlawful secondary boycott activity by the Union in the instant case is sufficient to satisfy the "mere possibility" test articulated in United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). In our view, a case is justiciable "if there is a possibility that the challenged activity will recur and if it is possible that the challenging party will be affected should recurrence take place * * *." Comment, Mootness on Appeal in the Supreme Court, 83 Harv.L.Rev. 1672, 1690 (1970). See Diamond v. Bland, 91 Cal.Rptr. 501, 477 P.2d 733 (En banc 1970). Cf. Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911). Nonetheless, we are cognizant that should the pending settlement stipulation be approved by the General Counsel and thereafter by the Board prior to our decision, these proceedings would be mooted under the holding of Sears, Roebuck & Company v. Carpet Layers Local Union No. 419, 397 U.S. 655, 90 S.Ct. 1299, 25 L.Ed.2d 637 (1970). However, we feel in this case there are cogent reasons for passing upon the merits of the appeal even should the pending settlement stipulation be so approved. We are impressed with the argument of appellants that the alleged errors committed in the § 10(l) proceedings are inherently evasive of review since it is not feasible to perfect and obtain an appellate review prior to the Board's "final adjudication." Consequently, since we believe that the doctrine of mootness should not be used to perpetually frustrate judicial review of issues of public importance arising in otherwise justiciable cases, the following comments are appropriate:

"If the Court is confronted with a substantial likelihood that an issue it believes moot will always arrive there in the same condition because of the inherent nature of the issue, the Court should not refuse review on the basis of mootness. This policy overrides the first policy of ensuring the effective functioning of the adversary system, so demonstration of the litigants\' personal stake should not be required. The Court must acknowledge that the real choice is not between taking or not taking risks with the quality of the judicial process, but between securing or not securing the values of appellate review — stability, uniformity, and objectivity."

83 Harv.L.Rev. at 1692 (footnote omitted).

We conclude that these appeals are not moot; furthermore, the policy of ensuring judicial review of issues of public importance which are inherently evasive of review compels us not to refuse review on the basis of mootness. See ITT Lamp Division of the Int'l Telephone & Telegraph Corp. v. Minter, 435 F.2d 989 (1st Cir. 1970).

II.

We next proceed to the merits of the appeal. Section 10(l) of the Act provides that when a charge is filed alleging an illegal secondary boycott, the Board's regional official shall give priority to the investigation of the charge and if, after investigation, the officer or regional attorney "has reasonable cause to believe such charge is true and that a complaint should issue," he shall petition the federal district court on behalf of the Board "for appropriate relief pending the final adjudication of the Board with respect to such matter." The statutory language on its face draws a distinction between the status to be afforded a labor organization against whom injunctive relief is sought by the Board...