decided: September 26, 1967.
LOCAL UNION NO. 830
Appeal from decree of Court of Common Pleas No. 9 of Philadelphia County, Dec. T., 1966, No. 2404, in case of Edmund Stryjewski and Jean Stryjewski, individually and trading as Tacony Beer Distributing Company v. Local Union No. 830, Brewery and Beer Distributor Drivers, Helpers and Platform Men, Gordon G. Grubb, Louis Lanni et al.
Daniel Sherman, with him Sherman & Atkinson, for appellants.
Richard Kirschner, with him Richard H. Markowitz, and Wilderman, Markowitz & Kirschner, for appellees.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell joins in this dissenting opinion.
[ 426 Pa. Page 513]
This appeal stems from the refusal by the Court of Common Pleas No. 9 of Philadelphia County to issue a preliminary injunction at the instance of a retail beer distributor concern against a labor union and certain of its officers and members.
Edmund Stryjewski and Jean Stryjewski, his wife, trading as Tacony Beer Distributing Company [Stryjewskis], operate a licensed beer distributing concern on Torresdale Avenue, Philadelphia. Local Union No. 803 [Union], a Teamsters Union affiliate, is the collective bargaining agent for brewery and beer distributor
[ 426 Pa. Page 514]
drivers, helpers and platform men in the Philadelphia area. This Union has a collective bargaining agreement with certain importing distributors*fn1 who supply beer to so-called "D Distributors", such as Stryjewskis and other retail beer distributors. This collective bargaining agreement provides, inter alia, that all beer supplied by the importing distributors must be delivered to their retail beer distributor customers and that no beer may be picked up at the platforms of the importing distributors by the importing distributors' customers, including Stryjewskis.*fn2 It is obvious that, because of this provision in the collective bargaining agreement, the picketing of the premises of a "D Distributor", such as Stryjewskis, precludes the receipt of any beer supplies from the importing distributors because the latters' union employees will not cross the picket line to make beer deliveries.
"To advertise the fact that [Stryjewskis] is nonunion and to attempt to organize the employees employed by [Stryjewskis]",*fn3 Stryjewskis' premises were picketed by the Union from January 10th to 20th, 1967 and from February 10th until the time of hearing in the court below.*fn4 Stryjewskis claim that one of their sons is their sole employee.
On January 12, 1967, Stryjewskis instituted this equity action in the Court of Common Pleas No. 9 of Philadelphia County against the Union and certain of
[ 426 Pa. Page 515]
its officers and members seeking both monetary damages and injunctive relief to terminate the picketing. After hearing, the court below refused to issue a preliminary injunction and from that decree the instant appeal was taken.
An examination of the opinion of the court below clearly indicates that its refusal to grant injunctive relief was predicated upon the view that the matters at issue were arguably within the exclusive jurisdiction of the National Labor Relations Board [NLRB], and not the state court.
Initially, we recognize two well-settled principles of law as presently applicable: (1) on an appeal from a decree refusing to grant a preliminary injunction, our appellate review is limited to a determination whether there were any apparently reasonable grounds for the action of the court below and, unless it is clear that no such grounds existed or that the rules of law relied upon are "palpably wrong or clearly inapplicable", the merits of the case or the reasons for or against the court's action are not considered: Lindenfelser v. Lindenfelser, 385 Pa. 342, 344, 123 A.2d 626 (1956); Riverside Borough School District v. International Brotherhood of Electric Workers, Local No. 607, 389 Pa. 637, 638, 133 A.2d 554 (1957); Northampton Area Joint School Authority v. Building and Construction Trades Council, 396 Pa. 565, 571, 152 A.2d 688 (1959); (2) when the matters in dispute are arguably subject to Sections 7 or 8 of the National Labor Relations Act [NLRA],*fn5 then the state, as well as the federal, courts must defer to the exclusive jurisdiction of the NLRB if the danger of state interference with national labor policy is to be averted: San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 245, 79
[ 426 Pa. Page 516]
S. Ct. 773 (1959); Wax v. International Mailers Union, 400 Pa. 173, 186, 187, 161 A.2d 603 (1960); Terrizzi Beverage Co. v. Local Union No. 830, 408 Pa. 380, 383, 184 A.2d 243 (1962).
The sole question resolved by the court below was that of jurisdiction, a question generally troublesome in labor litigation. It is clear beyond any doubt that it has been the intent of the Congress through its legislative enactments and of the United States Supreme Court through its pronouncements to fashion a labor policy which is national in scope. However, for some years an intolerable situation existed in labor-management disputes where the NLRB, for budgetary or other considerations, declined or refused to act and where the state courts or agencies, by reason of the ruling in Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S. Ct. 598 (1957), were precluded from exercising any jurisdiction. Both management and labor frequently found themselves in a "no man's land" where rights existed without a remedy for their enforcement. To correct this situation, through the enactment of the LMRA,*fn6 supra, the Congress provided that state courts could assume jurisdiction in labor disputes where the NLRB, by rule of decision or published rules, had declined or refused to assert jurisdiction. See: Pa. Labor Relations Board v. Butz, 411 Pa. 360, 365-370, 192 A.2d 707 (1963).
In the court below, Stryjewskis argued that jurisdiction was in the state court because the NLRB could not and would not take jurisdiction for two reasons: first, because their only employee was their son*fn7 and
[ 426 Pa. Page 517]
second, because Stryjewskis' gross yearly sales were only $230,000.*fn8 However, at the time of the hearing in the court below, the NLRB had not declined or refused to take jurisdiction*fn9 and the matters at issue were subject to construction as arguably within the jurisdiction of the NLRB under the Garmon ruling, supra.
In the court below, Stryjewskis had the burden of showing that the NLRB would not assume jurisdiction. Assuming, arguendo, that Stryjewskis had carried their burden of proof that, in all probability, the NLRB would not take jurisdiction because Stryjewskis had only one employee, i.e., their son, and because their gross annual retail sales were far below the jurisdictional standard of cases entertained under the rule enunciated by the NLRB, the question still remains whether until such time as the NLRB, in fact, has declined or refused to accept jurisdiction the state court could assume jurisdiction.
[ 426 Pa. Page 518]
Whether a state court can assume jurisdiction in the absence of an actual declination or refusal to act on the part of the NLRB has not been specifically determined by the Supreme Court of the United States. Cf. Hattiesburg Building & Trades Council v. Broome, 377 U.S. 126, 84 S. Ct. 1156 (1964); Radio & Television Broadcast Technicians, Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S. Ct. 876 (1965). On this subject courts in other jurisdictions have adopted contrary views. In Colorado State Council of Carpenters v. District Court of Larrimer County, 155 Colo. 54, 392 P. 2d 601 (1964) the Supreme Court of Colorado held that before a state court can take jurisdiction it must be shown that the NLRB has declined to do so. In Russell v. Electrical Workers Local 569, 43 Cal. Rptr. 725 (1965) the District Court of Appeals in California held that an assumption of jurisdiction by state courts must await an actual declination to act by the NLRB but the Supreme Court of California in Russell v. Electrical Workers Local 569, 48 Cal. Rptr. 702 (1966) reversed this ruling stating, inter alia: "We hold that the jurisdiction exercised by the state courts pursuant to section 14(c) does not depend upon a showing that the [NLRB] has, in fact, declined to act. Rather, we believe that the party seeking relief need only demonstrate, on the basis of published regulations and decisions of the board, that the case is one which the board will decline to hear."*fn10
We believe that, until the United States Supreme Court has spoken directly on this subject we should adhere to the view that, pending an actual declination
[ 426 Pa. Page 519]
to act by the NLRB, a state court should not assume jurisdiction. While both the LMRA and NLRB, the latter through the medium of its rules, have established certain standards it is evident that cases necessarily will present many variables and a resolution of such variable by the state courts, in the absence of a declination to act by the NLRB, may well result in a chaotic situation which will harm the national labor policy.
On the basis of the instant record and in the absence, at the time of hearing, of an actual declination or refusal to act by the NLRB, the court below did have reasonable grounds for its refusal of injunctive relief under the circumstances. When the matter comes on for final hearing, the fact that the NLRB has declined to act will furnish a basis upon which the court below can now assume jurisdiction and proceed to the determination of the cause on its merits.
Decree affirmed. Appellants to pay costs.
Dissenting Opinion by Mr. Chief Justice Bell:
The Court has affirmed the refusal of the lower Court to grant a preliminary injunction because the case was "arguably" within the jurisdiction of the NLRB under San Diego Trades Council v. Garmon, 359 U.S. 236, 245, 79 S. Ct. 773 (1959). I join in Justice Roberts' dissenting Opinion, but I am impelled to make several additional observations.
[ 426 Pa. Page 520]
The National Labor Relations Act, 29 U.S.C., § 151 et seq., established a National policy, and where that was seriously affected gave NLRB exclusive jurisdiction. This was modified by the Labor Management Relations Act of 1947, § 101, 29 U.S.C., §§ 152(3) and 164. That Act (LMRA) provided that " the term 'employee' Page 520} . . . shall not include any individual . . . employed by his parent. . .:" Section 152(3), supra.*fn1
Thereafter, and under the provisions of the LMRDA, Section 164(c)(1) and (2),*fn2 the NLRB announced in an NLRB Release No. R-576 (issued October 2, 1958) that it would take jurisdiction (1) over all retail enterprises which fell within its statutory jurisdiction and (2) which had a gross volume of business of at least $500,000 annually.
In this case, plaintiff and his wife, trading as Tacony Beer Distributing Company, operated a licensed beer distributing concern on Torresdale Avenue, Philadelphia. Their beer is purchased and consumed within Pennsylvania and did not and obviously could not interfere with or affect interstate commerce. Appellants have a gross annual business of $230,000. They did not have a single employee, since the term "employee" as defined by the Act does not include an individual employed by his parent -- supra. It is clear, therefore, that since 1958 the NLRB would not take jurisdiction of this case. Nevertheless, the local union picketed them and is gradually or rapidly putting them out of business; and a majority of this Court have refused to enjoin this picketing.
By the time the NLRB specifically decides that it will not take jurisdiction of this case -- and there is not
[ 426 Pa. Page 521]
the slightest, remotest doubt of its refusal*fn3 -- the poor little Stryjewski family will be broke, or out of business.
One of the many things which it is impossible to comprehend in these troubled days is why so many hypocritical politicians don't protect, and the unions are equally unwilling to protect, the little fellow (including the small family store) from big business and big unions. The little fellow, including the traditional family store, has been the epitome and the backbone of our Country. Why don't they let the little businessman eke out a little existence against what everyone knows are great odds?
The Majority rely upon San Diego Unions v. Garmon, 359 U.S., supra. In that case, the Court said (page 245): "When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." Imagine a business composed of husband and wife and son endangering the national policy! That case is clearly inapposite for the two-fold reason (1) this little business is one of the very few activities which are not arguably*fn** subject to Section 7 or 8 of the Act, and (2) this little business cannot possibly endanger the national policy.
For these reasons, I would issue the injunction prayed for.
[ 426 Pa. Page 522]
Dissenting Opinion by Mr. Justice Roberts:
By its decision today the majority has managed to perpetuate the very "no man's land"*fn4 which Congress sought to abolish by section 14(c) of the L.M.R.D.A.*fn5 As the Court correctly notes, the situation produced by the decision in Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S. Ct. 598 (1957) was a troublesome one, for it resulted in a state court being forced to shut its doors to a litigant with a valid complaint even though the N.L.R.B. had also declined jurisdiction. To eliminate this "no man's land", where rights existed without remedies, Congress enacted section 14(c) of the L.M.R.D.A. Although the clear intention of this act is to allow the state courts to assume jurisdiction in labor disputes where it is obvious that the N.L.R.B. by "rule of decision or by published rules" will decline to hear the case, nevertheless the majority has construed the language of § 14(c) to require that the N.L.R.B. actually refuse jurisdiction in each particular case before the state judicial forum becomes available. Such a reading completely ignores the possibility that the board, wholly consistent with § 14(c), may decline jurisdiction prospectively over an entire class of cases by its published rules and jurisdictional standards. In
[ 426 Pa. Page 523]
fact, this very case presents a situation where the majority of this Court has re-created the "no man's land."
It is true, as the majority points out, that the Supreme Court of the United States has not yet passed precisely on the construction of § 14(c). Nevertheless, in Radio & Television Broadcast Technicians, Local 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S. Ct. 876 (1965), the Court indicates quite strongly that § 14(c) allows a state court to anticipate N.L.R.B. reaction to a particular matter by determining whether that controversy falls without previously announced N.L.R.B. jurisdictional standards. In deciding that the Radio & Television dispute was not shown by the employer to be "one of those which the Board will decline to hear", the Court used, as its measuring rod, the previously announced figure of $100,000 in gross receipts given by the N.L.R.B. as the required jurisdictional amount in cases involving radio stations. Even the language used to deny relief to the employer speaks of determining if a case is one which the board " will decline to hear." 380 U.S. at 256, 85 S. Ct. at 877. (Emphasis supplied.) Such language certainly imparts an anticipatory flavor to § 14(c).
The majority opinion recites that both interpretations of § 14(c), the anticipatory approach and the "wait and see" method, have found favor in state tribunals. It cites two cases, one from California, the other from Colorado, as illustrative of this split of authority. Then, for no apparent reason other than an unsubstantiated fear of chaos in our national labor policy, the majority proceeds to adopt the "wait and see" method purportedly used in Colorado. Not only is this choice an unhappy one from a policy point of view, it also requires a misreading of the Colorado case. Nowhere in Colorado State Council of Carpenters v. District Court of Larrimer County, 155 Colo. 54, 392 P. 2d 601 (1964) is there any language to indicate that a
[ 426 Pa. Page 524]
state court must decline jurisdiction in a particular matter until that precise case has been rejected by the N.L.R.B. All that appears on this issue is a broad statement that "state courts have no jurisdiction to enjoin peaceful picketing in the absence of a showing that the National Labor Relations Board has declined to accept jurisdiction over the controversy." 155 Colo. at 56, 392 P. 2d at 601, 602. Certainly it cannot be said from this language that Colorado has eliminated the possibility of a published rule being used to show a prospective denial of jurisdiction by the board. It appears that the employer did not even attempt to show a prospective denial and, moreover, the statement of facts contained in the opinion reveals nothing upon which such an argument could have been based.
In contrast to the Colorado case, the California case, Russell v. Electrical Workers Local 569, 48 Cal. Reptr. 702, 409 P. 2d 926 (1966), represents a clear holding that state courts need not wait for the board to decline jurisdiction in a particular controversy before hearing the case. In reversing a lower court holding that the employer must always first take his case to the N.L.R.B., Mr. Justice Tobriner, writing for a unanimous court, noted: "To require the parties to submit every case to the board for determination of the jurisdictional question would frustrate the clearly manifested intent of Congress that the board be empowered to delimit the boundaries of its jurisdiction by 'rule of decision or by published rules.' We would strip these rules of their legal significance were we to require reference of every case to the board." 48 Cal. Reptr. at 704, 409 P. 2d at 928. I can only underscore this sound statement of logic and law by pointing out that the very essence of preliminary injunctive relief is its swiftness. To require an employer to make a completely fruitless and futile claim to the N.L.R.B. --
[ 426 Pa. Page 525]
a claim whose fate is already sealed by previous board pronouncements that it will not hear such matters*fn6 -- is tantamount to stripping the preliminary injunction completely of its effectiveness.
It remains now to apply the California rule to the facts before us. In so doing I am convinced that the lower court erred in refusing to reach the merits of the request for preliminary injunction. I appreciate that our power to review the denial of a preliminary injunction is tempered by our own case law which cautions that we leave undisturbed any such decision that is based on "apparently reasonable grounds."*fn7 I also realize that, in the area of labor law, the state court must leave to the N.L.R.B. any case that is arguably within the jurisdiction of the board. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S. Ct. 773 (1959). Nevertheless, a careful review of the record in this matter reveals no such reasonable ground to support the lower court's conclusions of fact; and a review of the N.L.R.B.'s announced jurisdictional standards unquestionably shows that this matter is not even arguably within its jurisdiction.
The appellants advanced two arguments to support their conclusion that the board would not hear this case. First, it is contended that the Stryjewskis employ only their son and that the National Labor Relations Act itself declares that one is not an employee if
[ 426 Pa. Page 526]
he works for his parents.*fn8 Thus it follows that since the Stryjewskis have no employees, the federal statute does not even apply to them and of course the federal agency will not take jurisdiction. In a footnote the trial court opinion states however, that the Stryjewskis do in fact have other employees. This is simply not substantiated by the record. Nowhere in the 200 pages of testimony is there the slightest scintilla of evidence that anyone works for the Stryjewskis other than their son. That another son and a brother-in-law have occasionally helped out on weekends for a few hours and for no pay certainly cannot support a finding that the Stryjewskis had employees within the meaning of the act.*fn9
The second reason advanced for the N.L.R.B.'s lack of jurisdiction is based upon N.L.R.B. Release No.
[ 426 Pa. Page 527]
R-576 issued October 2, 1958 in which the board declared that it would assert jurisdiction only over those retail enterprises whose gross volume of business exceeded $500,000 annually. The Stryjewski's gross volume is only $230,000 per year.
In spite of this conceded fact, the lower court concluded that, for jurisdictional purposes, the Stryjewski's gross receipts should be added to those of the importing distributors whose drivers would not cross the picket line. This addition process is indeed consistent with board policy, but only when a secondary boycott is involved. See Hattiesburg Building and Trades Council v. Broome, 377 U.S. 126, 84 S. Ct. 1156 (1964) and cases cited therein. Appellee's contention notwithstanding, there simply is no secondary boycott present here. Admittedly, on May 15, 1967 a federal preliminary injunction was issued restraining the union from forcing the importing distributors to cease doing business with several domestic distributors, one of whom was the present appellant.*fn10 However, not only was this injunction dissolved pursuant to the N.L.R.B.'s letter of May 23, 1967 in which the board declared that none of the picketing was unlawful as secondary, but also the trial record below is devoid of any evidence that there was picketing at the importer's place of business in the present dispute. It is the nature of a secondary boycott that pressure is put upon one employer to cease trading with another employer with whom the union has its primary dispute.*fn11 Clearly under these circumstances it is quite reasonable for the N.L.R.B. to look to both employers' gross receipts for jurisdictional purposes. However, the only picketing complained of by the Stryjewskis occurred at their place
[ 426 Pa. Page 528]
of business. If the result of the picketing was a refusal by the importer's drivers to cross the picket line, thus preventing the Stryjewskis from transacting business with the importing distributors, this alone cannot support the conclusion that a secondary boycott was involved. Since, absent the presence of a secondary boycott, the trial court's determination of gross receipts was clear error, it should not have declined jurisdiction on that ground.
For all the foregoing reasons, I firmly believe that the lower court should have entertained the preliminary injunction on its merits -- even though at that time the N.L.R.B. had not yet specifically declined jurisdiction over this particular controversy. Of course I agree with the majority that even under their reading of section 14(c) the case can now be heard below since the N.L.R.B. in fact declined jurisdiction on the day of oral argument before this Court. Nevertheless the rule of law announced by the majority is, I feel, an improper one.
As to that rule I dissent.