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McLeod v. Local 239

March 30, 1964


Author: Kaufman

Before WATERMAN and KAUFMAN, Circuit Judges, and DIMOCK, District Judge.

KAUFMAN, C. J.: Posing a question vital to the prosecutorial machinery of the National Labor Relations Board, this appeal challenges the power of the Board's General Counsel to order that a temporary injunction be sought, when the conduct to be enjoined has initially been found by a regional director not to constitute an unfair labor practice.

By the terms of § 10(1) of the National Labor Relations Act,*fn1 61 Stat. 146, 29 U.S.C. § 160, the "officer or regional attorney of the NLRB to whom the matter may be referred" is authorized to seek a temporary injunction of conduct which he has reasonable cause to believe is in violation of certain specified sections of the Act. Prominent among these is § 8(b)(7)(B), which prohibits organizational and recognitional picketing within twelve months of a valid representational election. In the present case, Abbey Auto Parts Corporation, a wholesale and retail distributor of automobile parts and accessories, filed a complaint with the Board, in which it alleged that the appellant union was engaging in just such illegal picketing. After investigating the matter, the Board's regional director determined that the picketing in question was not for the purpose of securing union recognition or organization, and accordingly declined to issue a complaint on behalf of the Board. As permitted by NLRB regulations,*fn2 Abbey appealed this decision to the Board's General Counsel, who sustained Abbey's appeal and remanded the case to the regional director "with instructions to issue an appropriate complaint." In conformance with these instructions, the regional director promptly issued the complaint and shortly thereafter filed the present petition for a § 10(1) injunction, pending Board action on the allegations of the complaint. After a hearing, Judge Bartels concluded that there was reasonable cause to believe that an 8(b)(7)(B) violation had occurred, and the injunction was issued.

On this appeal, the union seizes upon the precise wording of § 10(l), and vigorously insists that an injunction may be sought only if "the officer or regional attorney to whom the matter may be referred has reasonable cause to believe an 8(b)(7) charge is true." Noting that the regional director in the present case initially refused to issue the complaint, and did so only when instructed by the General Counsel, the union maintains that the "officer or regional attorney" did not actually believe in the truth of the charges. Finding the General Counsel's belief in this regard to be irrelevant under the language of § 10(1), the union argues that the District Court was without jurisdiction to issue the temporary injunction.

There is little dispute as to the relevant facts. On April 15, 1963, at the behest of the company, the NLRB found that Abbey had withdrawn from a multi-employer bargaining unit, and scheduled a representation election for Abbey's employees on May 10. Although participating in an April 26 conference which set the ground rules for the balloting, the union wrote to Abbey on May 3, stating that it was withdrawing its demands for recognition, but would nevertheless picket the company with signs indicating that the shop was non-union. This picketing commenced three days thereafter, and continued until it was enjoined by Judge Bartels. Despite the withdrawal of the union's demands, the election was held on May 10, and Abbey's nine employees voted unanimously against union representation.

At the hearing below, four gas station operators who had been customers of Abbey testified that the business representative of appellant union had approached them individually, and had requested that they not deal with the company while the picketing continued. Three of these witnesses further recalled being informed that the union's objective in picketing was organizational; in the words of one, the representative told him that "they were picketing Abbey's because it was a non-union shop and they wanted to unionize it." In addition, Abbey's president testified that he had been approached by one of the pickets, who had identified himself as the brother of the union president, and had asked "when we were going to get together and talk . . . about making a deal as far as signing the contract was concerned." Finally, the evidence revealed that the picketing had stopped or delayed the delivery of goods to Abbey on at least three occasions.

The union did not seek to rebut this evidence, placing no witnesses on the stand, and confining itself to proving that all of the testimony presented below had been before the regional director at the time of his initial refusal to issue the complaint. On the basis of the evidence before him, Judge Bartels concluded that the picketing had an organizational or recognitional objective, that it was in violation of § 8(b) (7)(B), and that the issuance of a 10(1) temporary injunction was thus proper. On appeal, the union once again insists that the regional director's original refusal to issue the complaint deprived the court of jurisdiction so to hold.

Although ingenious, we believe that the union's argument misconceives the clear purport of the Act, and must therefore be rejected. For as the union virtually concedes, we find it manifest that the General Counsel - and not the regional director - was intended to have final authority in all matters affecting the Board's prosecutorial machinery. Indeed, congressional intent could hardly have been more clearly evidenced. As enacted in 1947, § 3(d) of the Act specifically provides that the "General Counsel of the Board shall exercise general supervision over all attorneys employed by the Board . . . and over the officers and employees in the regional offices. He shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 10, and in respect of the prosecution of such complaints before the Board." 61 Stat. 139, 29 U.S.C. § 153.

The legislative history of § 3(d) leaves little doubt as to its intended significance. In the words of the House Conference Report, "by this provision responsibility for what takes place in the Board's regional offices is centralized in one individual, who is ultimately responsible to the President and Congress." 1 Legislative History of the Labor Management Relations Act 1947, at 541. And as explained by Representative Landis, a House conferee on the bill, "The General Counsel of the National Labor Relations Board will become the key labor-enforcement officer of the Government. He will head the staff in the Regional Offices. He will have the final authority over whether complaints of unfair-labor practices shall be filed against employers or unions." Id . at 905.

Pursuant to this clear legislative mandate, the NLRB promulgated rules and regulations whereby the General Counsel was to exercise his supervisory authority over the local Board attorneys. Thus, it was provided that "if, after the charge has been filed, the regional director declines to issue a complaint, he shall so advise the parties in writing . . . The person making the charge may obtain a review of such action by filing a request therefor with the general counsel in Washington, D.C. . . ." 29 C.F.R. 102.19. And it was this very procedure which Abbey followed to secure review of the regional director's action in the present case.

Far from evidencing a desire to lessen the powers of the General Counsel, the temporary injunction authorized by § 10(1) is a part of a comprehensive attempt to provide expeditious remedies for certain unfair labor practices which might otherwise accomplish their unlawful objectives before the Board could consider their legality in the ordinary course of its business. In furtherance of this end, § 10(1) provides that the preliminary investigation of a § 8(b)(7) charge is to be given priority over all other cases in the office in which it is filed; if, after such investigation, there is reasonable cause to believe that a violation has occurred, a temporary injunction may be secured. As expressed by the Senate Committee Report on the Section, "because of the nature of certain of these practices . . . the Committee is convinced that additional procedures must be made available under the National Labor Relations Act in order adequately to protect the public welfare which is inextricably involved in labor disputes.

"Time is usually of the essence in these matters, and consequently the relatively slow procedure of Board hearing and order, followed many months later by an enforcing decree of the circuit court of appeals, falls short of achieving the desired objectives - the prompt elimination of the obstructions to the free flow of commerce and encouragement of the practice and procedure of free and private collective bargaining. Hence we have provided that the Board, acting in the public interest . . . may seek injunctive relief." 1 Legislative History of the Labor Management Relations Act 1947, at 414.

In short, Congress recognized that a final Board determination as to the legality of conduct challenged under § 8(b)(7) might well arrive long after the picketing had worked its injury, and it was to forestall this possibility that the expedited procedures of § 10(1) were created. At the same time, § 3(d) made it quite clear that the General Counsel was to have final authority at all times with respect to prosecuting unfair labor practices on behalf of the Board. Since the decision whether to seek a temporary injunction will, for all practical purposes, be the crucial one, we would frustrate the clear objective of Congress were we to adopt the union's suggestion, and to hold that a regional director's initial refusal to file a complaint precluded the possibility of § 10(1) relief, even though the local officer's determination had subsequently been reversed by the General Counsel. Indeed, it would seem entirely arbitrary to find that the General Counsel, who in all other respects exercises supervision over his subordinates in the regional offices, is lacking in final authority over precisely those provisions of the Act which most require prompt and effective enforcement.

The Labor Board has made it abundantly clear that no such disruptive result was intended. Thus, in a "statement of general principles," published pursuant to the Administrative Procedure Act, the NLRB declared that the "General Counsel shall exercise full and final responsibility, on behalf of the Board, for initiating and prosecuting injunction proceedings as provided for in Sections 10(j) and (1)." 13 F.R. 655. This ultimate authority in § 10(1) cases was, moreover, recently recognized by the Court of Appeals for the Fifth Circuit. In Meekins, Inc. v. Boire 320 F.2d 445 (5th Cir. 1963), two employers sought a mandatory injunction, in an effort to compel the Board's regional director to petition for § 10(1) relief. Noting that the General Counsel must finally determine whether a 10(1) injunction will be sought, and that the employers had not taken an appeal from the regional director's refusal to issue a complaint, the Court dismissed the action on the ground that the plaintiffs had failed to exhaust their administrative remedies. See also Madden v. International Hod Carriers' Union, 277 F.2d 688 (7th Cir.), cert. denied, 364 U.S. 863 (1960) (the scope, conduct or extent of the Board's preliminary investigation is irrelevant in § 10(1) cases; only questions for the Court ...

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