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Kaynard v. Independent Routemen's Association

June 1, 1973

SAMUEL M. KAYNARD, REGIONAL DIRECTOR OF TWENTY-NINTH REGION OF NATIONAL LABOR RELATIONS BOARD, FOR AND ON BEHALF OF NATIONAL LABOR RELATIONS BOARD, PETITIONER-APPELLANT
v.
INDEPENDENT ROUTEMEN'S ASSOCIATION, RESPONDENT-APPELLEE.



Before Smith, Mulligan and Timbers, Circuit Judges.

Author: Mulligan

MULLIGAN, C. J.: This is an appeal from an order of the United States District Court for the Eastern District of New York, Hon. Anthony J. Travia, presiding. The order appealed from denied a petition for a preliminary injunction filed on behalf of the National Labor Relations Board (the Board) pursuant to Section 10(l) of the National Labor Relations Act (the Act), 29 U.S.C. § 160(l). The order was entered on March 12, 1973 based upon findings of fact and conclusions of law in the Court's opinion entered on the same day. Reversed and remanded.

The petition and amended petition for the Section 10(l) injunction were predicated upon a charge filed with the Board on January 30, 1973 by Urban Distributors, Inc. (Urban) alleging that the respondent, Independent Routemen's Association (Union), a labor organization, had and was continuing to engage in unfair labor practices within Section 8(b) (4) (ii) (B) of the Act, 29 U.S.C. § 158(b) (4) (ii) (B), prohibiting certain types of secondary boycotts. In essence the charge was that the Union, to further a labor dispute with Lorenz Schneider, Inc. (Lorenz), a franchise distributor of snack products in the New York metropolitan area, was engaged in an unlawful secondary boycott by picketing various retail stores which carry, stock and sell food products sold to them by Urban and other independent distributors who do business with Lorenz. The Regional Director of the Board determined after investigation that there was reasonable cause to believe that the Union was engaged in an unfair labor practice and filed the Section 10(l) petition. The Court below issued a temporary restraining order on March 2, 1973, conducted a hearing on March 7, 1973 and on March 12, 1973 issued its order dismissing the petition. A panel of this Court granted a temporary injunction and expedited the appeal.

Lorenz distributes Wise Potato Chips, Quinlan Pretzels, Old London Cheese Doodles and other snack products (Wise Products) throughout the New York metropolitan area. Lorenz' method of operation is to sell routes to independent dealers. Urban is one of several purchasers of such routes from Lorenz. Since December, 1972, the Union has been engaged in a labor dispute with Lorenz concerning its recognition as the bargaining representatives of Lorenz' employees. To further its strike against Lorenz, the Union has engaged as found below in a campaign to force a number of supermarkets and grocery stores to remove Wise Products from their shelves. Stores which carry Wise Products were visited by Union members and were threatened with a picket line unless they discontinued these sales. When some retailers refused, picketing was promptly commenced with chanting and signs proclaiming:

ON STRIKE

WISE POTATO

QUINLAN PRETZEL

OLD LONDON DRIVERS

AGAINST

LORENZ SCHNEIDER CO. INC.

DISTRIBUTORS

I

It is beyond any question that the role of a district court in a Section 10(l) proceeding is not to adjudicate the merits of the alleged violation, but rather to decide whether the Board had reasonable cause to believe that the respondent has violated the Act. Reasonable cause has been interpreted to mean that there must be a "reasonable possibility" that the Board will sustain the unfair labor practice charge. McLeod v. Local 25, IBEW, 344 F.2d 634, 638 (2d Cir. 1965). That the Court's function is so circumscribed has been held in numerous cases and in fact is not disputed here on appeal. See NMU v. Commerce Tankers Corp., 457 F.2d 1127, 1133 (2d Cir. 1972); Sachs v. Local 48, Plumbers, 454 F.2d 879 (4th Cir. 1972); Kennedy v. Los Angeles Typographical Union No. 174, 418 F.2d 6 (9th Cir. 1969); Schauffler v. Local 1291, Int'l Longshoremen's Ass'n, 292 F.2d 182, 187, (3d Cir. 1961). ) Neither can there be any question that the Court below committed reversible error in not limiting itself to the question as to whether or not there was reasonable cause for the Board to find a violation of Section 8(b) (4) (ii) (B) of the Act, but rather finding on the merits that there was no violation of that Section. McLeod v. Local 282, Teamsters, 345 F.2d 142, 145 (2d Cir. 1965). Without any discussion of the pertinent facts, the Court below made twelve identical Findings of Fact (Findings 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45) which repeat with respect to individual supermarkets or grocery stores that: "the acts engaged in, from the evidence in this case, all reveal a compliance with the guidelines set forth in the aforementioned cases, i.e., the 'union's appeal to the public is confined to its dispute with the primary employer, since the public is not asked to withhold its patronage from the secondary employer, but ...


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