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REYNOLDS EX REL. NLRB v. MARLENE INDUS. CORP.

February 7, 1966

John J. A. Reynolds, Jr., Regional Director of the Twenty-Sixth Region of the National Labor Relations Board, for and on Behalf of the National Labor Relations Board, Petitioner
v.
Marlene Industries Corporation, et al., Respondents


Metzner, D.J.


The opinion of the court was delivered by: METZNER

METZNER, D.J.:

The International Ladies' Garment Workers' Union seeks leave to intervene in the motion by the petitioner, pursuant to section 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j), for injunctive relief against the respondents. The petitioner, the National Labor Relations Board, opposes the application.

 The petitioner has issued its complaint against the respondents charging unfair labor practices by the latter. 29 U.S.C. § 160(b). A hearing on the charges has been set before a trial examiner, and the final order entered at the conclusion of the administrative proceedings is subject to review by the Court of Appeals. 29 U.S.C. § 160(f).

 The union is the charging party before the Board and participates in the hearings as a party. 29 C.F.R. §§ 102.8 and 102.38. Predicated on this standing the union seeks leave to intervene in this proceeding.

 29 U.S.C. § 160(j) allows the Board to seek temporary injunctive relief from a district court pending completion of the administrative process. This relief is in aid of the function of the Board to determine the charges, and its purpose is to prevent the continuance of unfair labor practices upon a showing of reasonable grounds to believe that such practices exist. Garner v. Teamsters Union, 346 U.S. 485, 489, 98 L. Ed. 228, 74 S. Ct. 161 (1953); Douds v. International Longshoremen's Ass'n, 242 F.2d 808, 811 (2d Cir. 1957).

 The right to seek appropriate temporary relief is solely that of the Board, and is not available to a private litigant. Amalgamated Clothing Workers v. Richman Bros. Co., 348 U.S. 511, 517, 99 L. Ed. 600, 75 S. Ct. 452 (1955). The case of Automobile Workers v. Scofield, decided by the Supreme Court on December 7, 1965 (34 U.S.L. Week 4051), is not in point. The possibility of multiplicity of appeals was present there. The Court was reviewing a final order pursuant to section 160(f). The determination by the Court could affect a charging party, the applicant for intervention, who at some later stage could appeal to the courts if the order was reversed.

 Bearing these considerations in mind, we turn to Fed. R. Civ. P. 24. Subdivision (a)(2) of that rule permits intervention as of right when "the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action." This rule presupposes a right in the applicant to maintain a claim in this court for relief. The applicant here has no such right. See Fafnir Bearing Co. v. NLRB, 339 F.2d 801, 803 (2d Cir. 1964). Furthermore, no judgment flows from the action by the court in this proceeding in aid of the Board's function. Lastly, it is a little difficult for the court to find that the Board, possessed of expertise developed over the years, and which independently determines that a petition be filed with the court for a temporary injunction for the protection of the applicant, will not adequately represent the interest involved.

 Similarly, permissive intervention under rule 24(b)(2) may not be granted since that portion of the rule is expressly predicated on an applicant's claim..

 Motion denied. So ordered.

 METZNER, D.J.: Petitioner obtained an order to show cause why a preliminary injunction should not issue against the respondents pending final determination by the National Labor Relations Board of unfair labor charges against respondents. Jurisdiction is predicated on section 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j).

 Respondents Marlene Industries Corporation, Charles Meltzer, Samuel Meltzer and Abraham Dansky move to dismiss the petition for failure to state a claim. The remaining respondents move to dismiss the petition because of lack of personal jurisdiction and insufficiency of service of process. All respondents move for a change of venue pursuant to 28 U.S.C. § 1404(a).

 The petitioner is the Regional Director of the Twenty-Sixth Region of the NLRB headquartered in Memphis, Tennessee. The respondent Marlene Industries is a New York corporation with its principal place of business in New York City, where it is engaged in the manufacture and sale of women's clothing. Marlene wholly owns six corporate subsidiaries which manufacture merchandise for Marlene. 85% of their output is shipped to New York, where it is warehoused in a building owned by another wholly owned subsidiary of Marlene. The remaining 15% is shipped directly to customers of Marlene.

 These six subsidiaries are also named as respondents in the petition. Three of them are incorporated and located in Tennessee at Decaturville, Trousdale and Westmoreland. Two of them are incorporated and located in South Carolina at Aynor and Loris. The sixth is incorporated and located in Alabama at Frisco City.

 Respondent Charles Meltzer is the president and a director of Marlene and the six subsidiaries. He owns 33.7% of the stock of Marlene. Respondent Samuel Meltzer, brother of Charles Meltzer, is the treasurer and a director of Marlene and an officer and director of the six subsidiaries. He owns 33.2% of the stock of Marlene. Respondent Dansky is a vice president and a ...


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