Squillacote For and on Behalf of N.L.R.B. v. International Broth. of Teamsters, Local 344

• Decision Date: 19 October 1977
• Docket Number: No. 76-2117,76-2117
• Citation: 561 F.2d 31
• Parties: 95 L.R.R.M. (BNA) 2977, 81 Lab.Cas. P 13,310 George SQUILLACOTE, Regional Director of the Thirtieth Region of the National Labor Relations Board, for and on Behalf of the National Labor Relations Board, Petitioner-Appellee, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 344, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 31

561 F.2d 31

95 L.R.R.M. (BNA) 2977, 81 Lab.Cas. P 13,310

George SQUILLACOTE, Regional Director of the Thirtieth Region of the National Labor Relations Board, for and on Behalf of the National Labor Relations Board, Petitioner-Appellee, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 344 Respondent-Appellant.

No. 76-2117.

United States Court of Appeals, Seventh Circuit.

Argued April 12, 1977.

Decided June 29, 1977.

As Corrected Oct. 19, 1977.

Elliott Moore, Deputy Associate Gen. Counsel, John W. Hornbeck, Margery E. Lieber, Attys., N. L. R. B., Washington, D. C., for petitioner.

Kenneth R. Loebel, Milwaukee, Wis., Harry Sangerman, Chicago, Ill., for respondent.

Before TONE and BAUER, Circuit Judges, and JAMESON, Senior District Judge. ^*

TONE, Circuit Judge.

The issues in this appeal are whether an injunction under § 10(l ) of the National Labor Relations Act was justified, and whether, despite § 10(e) and (f) of the Act, certain statutory and constitutional claims may be asserted by an action in the district court while the underlying Board proceeding is still in progress.

The International Brotherhood of Teamsters, Local 344 filed a petition for a representation election with the National Labor Relations Board. The Regional Director dismissed the petition on the grounds that under § 9(b)(3) of the National Labor Relations Act, 29 U.S.C. § 159(b)(3), the employees of Purolator Security, Inc., whom the Union was seeking to represent, appeared to be "guards" and the Union was a labor organization which, in the words of the statute, "admits to membership," and was "affiliated . . . with an organization which admits to membership, employees other than guards." The Board affirmed the dismissal.

Subsequently the Board issued an amended unfair labor practice complaint alleging, inter alia, that the Union had engaged in recognitional picketing of Purolator in violation of § 8(b)(7)(C), 29 U.S.C. § 158(b)(7)(C). Shortly thereafter, the Regional Director, pursuant to § 10(l ), 29 U.S.C. § 160(l ), petitioned the District Court to enjoin the challenged picketing pending final Board action on the charges contained in the unfair labor practice complaint. ¹ The Union answered and counterclaimed, alleging (1) that § 8(b)(7)(C) was unconstitutional as applied to the Union in this case, ² (2) that § 9(b)(3) was unconstitutional on its face, and (3) that the Board exceeded its statutory authority in dismissing the Union's petition for a representation election. The District Court granted injunctive relief and dismissed the Union's counterclaim. The Union appeals.

I.

The Appropriateness of Relief Under § 10(l)

The district court's inquiry in a § 10(l ) proceeding must be narrowly confined:

"(T)he district court is not called upon to decide the merits of an (8(b)(7) (C)) charge. The Board does this. The district court guided by equitable principles determines instead whether the Board has reasonable cause to believe the defendant has violated section (8(b)(7)(C)) of the Act. If the court finds reasonable cause, it must grant whatever injunctive relief 'it deems just and proper.' "

Squillacote v. Graphic Arts Int'l Union, 513 F.2d 1017, 1021 (7th Cir. 1975) (Graphic Arts I ). See also Squillacote v. Graphic Arts Int'l Union, 540 F.2d 853, 858 (7th Cir. 1976) (Graphic Arts II ). These limitations apply not only to review of the facts allegedly supporting the unfair labor practice charge but also to scrutiny of the legal theory on which the Board bases the charge. For, "it is axiomatic that the Board should be accorded the opportunity to pass initially on questions involving the construction of the N.L.R.A. Where the legal questions revolve around the substantive validity of unfair labor practice theories, it is particularly important that the courts make every effort to have the Board pass on the legal merits first." Boire v. Int'l Brotherhood of Teamsters, 479 F.2d 778, 789 (5th Cir. 1973). See also Schauffler v. Local 1291, Int'l Longshoremen's Association, 292 F.2d 182, 188 (3d Cir. 1961). Thus the district court need only satisfy itself that the legal theory underlying the unfair labor practice charge is "substantial and not frivolous." See Graphic Arts II, supra, 540 F.2d at 858.

The pertinent facts in the case at bar being undisputed, the only issue remaining on the § 10(l ) aspect of the case is the substantiality of the Regional Director's legal theory. This theory is that the words of § 8(b)(7) (C), a "petition under section 9(c)," ³ refer to a petition raising a "legitimate" question of representation and such a question is not presented when, if an election were conducted by the Board, the petitioning union would be prohibited by the Act from being certified as the collective bargaining representative of the employees whom the union is seeking to represent. Inasmuch as § 9(b)(3) provides that "no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards," the Board is precluded from certifying the Union as the bargaining representative of the Purolator guards. The Regional Director and the General Counsel therefore contend that, under § 8(b)(7)(C), the Union's representation petition did not operate to insulate the Union from unfair labor practice charges based on its recognitional picketing of Purolator.

This legal theory is plainly "substantial and not frivolous." It has been the basis for Board orders in at least two other reported cases in which the facts were similar to those at bar. Dunbar Armored Express, Inc., 211 NLRB 687 (1974); Wells Fargo Armored Service Corp., 221 NLRB 1240 (1975). The Board's Wells Fargo order was enforced by the District of Columbia Circuit in Drivers, Chauffeurs, Warehousemen and Helpers, Local 71 v. NLRB, 553 F.2d 1368 (D.C.Cir. 1977). ⁴ In addition, several district courts have granted § 10(l ) relief under circumstances similar to those in this case. Humphrey v. Drivers, Chauffeurs & Helpers, Local 639, 369 F.Supp. 730 (D.Md.1974); Fuchs v. Teamsters Local 671, 398 F.Supp. 243 (D.Conn.1975); McLeod v. Security Guards and Watchmen Local 803, 333 F.Supp. 768 (S.D.N.Y.1971). ⁵

The District Court did not err, therefore, in finding the requisite reasonable cause to believe that the union committed the unfair labor practices charged in the Board proceeding. Having so found, and consequently being required to "grant whatever injunctive relief 'it deems just and proper.' " Graphic Arts I, supra, 513 F.2d at 1021, the court enjoined the union from the following conduct:

"(a) Continuing their current picketing of Purolator Security, Inc.

"(b) Otherwise picketing or causing Purolator Security, Inc. to be picketed, or threatening to picket or to cause Purolator Security, Inc. to be picketed, where an object thereof is to force or require Purolator Security, Inc. to recognize or bargain with respondent International Brotherhood of Teamsters, Local 344, as the representative of Purolator Security, Inc.'s guards, or to force or require Purolator Security, Inc.'s guards to accept or select respondent International Brotherhood of Teamsters, Local 344, as their collective-bargaining representative."

This relief did not exceed that which is necessary to effectuate the purpose of § 10(l ), viz., to prevent persons whom the Board's representatives have reasonable cause to believe are violating the Act from accomplishing their unlawful objectives before the Board's orderly, though frequently protracted, processes have run their course. "No alternative kind of relief would have given adequate recognition to the reasonable-cause-to-believe standard of section 10(l )," Graphic Arts II, supra, 540 F.2d at 859, or to Congress' special concern for the potential harmful effects of recognitional picketing. ⁶ As the court noted in Retail Clerks Union v. Food Employers Council, Inc., 351 F.2d 525, 531 (9th Cir. 1965) (emphasis in original):

"Section 10(l ) reflects a Congressional determination that the unfair labor practices enumerated therein (including recognitional picketing in violation of § 8(b)(7)(C)) are so disruptive of labor-management relations and threaten such danger of harm to the public that they should be enjoined whenever a district court has been shown reasonable cause to believe in their existence and finds that the threatened harm or disruption can best be avoided through an injunction."

Accordingly, the District Court's order issuing the § 10(l ) injunction cannot be disturbed unless the Union can prevail on its counterclaim, to which we now turn.

II. The Union's Counterclaim

The Union also contends that the District Court erred in dismissing two of three counts of the Union's counterclaim ⁷ as not properly cognizable in an action for § 10(l ) relief. As this court recently stated in Grutka v. Barbour, 549 F.2d 5 (7th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1706, 52 L.Ed.2d 394 (1977): "It is well settled that district courts generally do not have jurisdiction to enjoin the Labor Board from conducting representation or unfair labor practice proceedings. Under Section 10 of the National Labor Relations Act . . . the exclusive means of obtaining judicial review of Board rulings by an aggrieved party is in a court of appeals. Normally, the administrative remedies extant before the Labor Board must be exhausted as a prerequisite to federal jurisdiction."

Id. at 7 (citations omitted). See § 10(e) and (f) of the Act, 29 U.S.C. § 160(e) and (f). The Supreme Court has recognized only two exceptions to the § 10 exhaustion requirement. One is the exception established in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), for a plain violation of statutory right. The other, set forth in McCulloch v. Sociedad Nacional, 372 U.S. 10, 83 S.Ct. 671, 9...