The opinion of the court was delivered by: BECKER
This is a petition brought by the National Labor Relations Board ("Board") for a temporary injunction under § 10(l) of the National Labor Relations Act ("Act"), 29 U.S.C. § 151, et seq., alleging that the respondent, Teamsters Local 115 ("Union") has violated § 8(b)(7)(C) of the Act, in connection with its picketing of J.L. Popowich and Sons ("Company"), a Philadelphia firm engaged in the importation and distribution of watch bands. Section 8(b) (7)(C) prohibits picketing by a union which is not the certified representative where "an object" is recognition or organization, if the picketing is conducted for more than a reasonable period, not to exceed 30 days, without the filing of a petition for certification under § 9(c) of the Act. Section 8(b) (7) violations are among those unfair labor practices which Congress deemed sufficiently disruptive of commerce to include in § 10(l), which authorizes the federal district courts to grant temporary injunctive relief pending final action of the Board.
The picketing in question began on August 4, 1971. A petition for certification was filed on August 30, 1971. The gravamen of the Board's § 10(l) petition is that the picketing, from its inception, was accompanied by such threats and violence, directed towards the Company's partners, employees, customers and suppliers, that a certification petition filed 26 days later was not filed within a reasonable time.
We held an extensive hearing on the matter. At the hearing, the Board introduced substantial evidence in support of its allegations. The Union also introduced evidence: (1) denying that the pickets uttered threats or committed violence; and (2) denying that the picketing was organizational and recognitional in nature, asserting instead that the purpose of the picketing was to protest unfair labor practices by the Company, i.e., violations of §§ 8(a)(1) and 8(a)(3) of the Act, on account of which the Board (see infra) has filed a complaint against the Company. Our first task will be to make findings, to the extent permitted by our limited fact finding role, to resolve these factual disputes, and also another factual dispute which arises as follows.
The Union introduced evidence in support of an alternative argument, which commences with a virtual concession (confirmed in its Requests for Conclusions of Law) that at least part of the initial purpose of the picketing was organizational. The Union asserts that, at the time it commenced picketing, it represented (by virtue of signed cards) the majority of the Company's production and maintenance employees, thereby entitling it to recognition. It then filed a petition charging the Company with an unfair labor practice under § 8(a)(5) of the Act for refusing to recognize it; such charge, if sustained, would present a valid defense to the Union violation of § 8(b)(7) (C).
The Regional Director, however, refused to issue a complaint charging an 8(a)(5) violation. The Union thereupon appealed the Regional Director's refusal to issue a complaint, but on November 16, 1971, the Board's General Counsel denied the appeal.1a The Union contends that, after the General Counsel's decision, the purpose of the picketing changed, and that the picketing thenceforward was solely to protest the Company's 8(a)(1) and 8(a)(3) violations and not for organizational or recognitional purposes. The Board denies that the picketing ever lost its organizational or recognitional content. While in view of the General Counsel's decision, and the case of Dayton Typographical Union No. 57 v. NLRB, 117 U.S. App. D.C. 91, 326 F.2d 634 (D.C. Cir. 1963), discussed infra, it is not necessary to make a finding as to whether the Union in fact had a clear majority of the cards, it will be necessary to make a finding with respect to whether, after the General Counsel's decision, the purpose of the picketing changed.
The factual content of the case may be better understood if we first outline the legal questions raised by the Union's defense. These may be summarized as follows:
FIRST: Is the evidence sufficient for us to find reasonable cause to believe that the Union has violated § 8(b)(7) of the Act? Subsidiary questions are: (a) whether the refusal of a state trial judge to issue an injunction against acts of violence by the Union forecloses consideration of the threats and violence issue; and (b) whether it is proper to take the nature of the picketing into consideration (e.g., whether it is violent or peaceful) in determining what constitutes a reasonable time under § 8(b)(7)(C).
SECOND: Whether, notwithstanding the 8(a)(5) dismissal, the Union's alleged status as the representative of a majority of the Company's employees is a valid defense to the § 8(b)(7)(C) charge against the Union.
THIRD: Whether violation of §§ 8(a) (1) and 8(a)(3) by the Employer can constitute a defense to the § 8(b)(7)(C) charge; and
II. The Court's Fact-Finding Role
Our fact-finding role in this case is a limited one. We are bound by the principles enunciated in Schauffler ex rel. NLRB v. Local 1291, Int'l Longshoremen's Assoc., 292 F.2d 182 (3d Cir. 1961), as follows:
"It must be borne in mind that a Section 10(l) injunction is interlocutory in nature and only remains in force pending the final adjudication of the Board with respect to the unfair labor practice charge . . . The Board need not show that an unfair labor practice has been committed, but need only demonstrate that there is reasonable cause to believe that the elements of an unfair labor practice are present. Nor need the Board conclusively show the validity of the propositions of law underlying its charge; it is required to demonstrate merely that the propositions of law which it has applied to the charge are substantial and not frivolous. . . .
"If, in a Section 10(l) proceeding, a district court or a court of appeals undertook to finally adjudicate such questions it would not be acting consistently with the congressional policy underlying Section 10(l) . . . Thus, the court would, to some extent, usurp the Board's function as the primary fact finder in cases arising under the Act and its function as primary interpreter of the statutory scheme. . . ." Id. at 187, 188.
Petitioner is Regional Director of the Fourth Region of the Board, and filed this Petition for and on behalf of the Board. We find that there is, and that Petitioner has, reasonable cause to believe the following facts:
During the month of July 1971, the Union commenced efforts to organize the Company's employees.
The Union organizers were soon successful in obtaining from among the employees of the Company many (executed) cards indicating a desire to join the Union and designating the Union as their bargaining representative.
On August 2, 1971, Joseph Yeoman ("Yeoman"), a Union Business Agent, in a face-to-face meeting, represented to management that he had in hand cards signed by a majority of the employees and made a formal demand for recognition. On the same day, in addition to this demand, Yeoman mailed a letter and a "recognition agreement" to the Company and made a recognition demand upon Jay Ochroch, Company counsel, informing him that if the Company did not recognize the Union, there would be a strike commencing August 4. The Company refused the demands, asserting that it would recognize the Union only if there were an NLRB election. On August 3, Yeoman met at the Union Hall with the Company's employees and told them that the Company did not recognize the Union and that they would, therefore, go on strike. On August 4, as promised, a number of the Company's employees did not appear for work but instead formed a picket line in which they were joined by Union employees and members from other plants in the Philadelphia area.
From the beginning, the picketing was accompanied by threats, epithets and violence directed to the Company's management (particularly, two of the firm's partners, David and Maury Popowich), its employees, customers and suppliers. The Company first became aware of the picketing as the result of an incident involving one Donald DeVillasanta. On August 4, at about 7:45 a.m., DeVillasanta, a supplier of the Company, was making a delivery to the Company's plant at 542 Green Street, Philadelphia. As he parked his truck he was approached by Yeoman, who stood at the rear of the truck, keeping him from letting the tail gate down, and who told him that he could not deliver there because of the picketing.
Yeoman also told him if he delivered he "would be sorry." Maury Popowich opened the door for DeVillasanta and accepted the delivery. After the delivery was made, Yeoman followed DeVillasanta in his car and, a short distance from the plant, cut off his vehicle in mid-block. Accompanied by another man, Yeoman approached DeVillasanta and told him that he was going to follow him back to his plant and tell his "employer" what he had done; that he could hurt him, "not physically" -- but that he couldn't "stop the other pickets from hurting him physically."
On the same afternoon, David and Maury Popowich were preparing to deliver goods to the United Parcel Service ("UPS") terminal for shipment to customers outside Philadelphia. While attempting to load their station wagons, they were circled by the pickets who shouted obscenities of the worst character, and were repeatedly bumped into by Yeoman, who would then utter such statements as "if you bump into me, I'll kick your jew head in." When asked to move, the pickets refused, and it took 20 minutes to load the wagons. Yeoman and his compatriots then positioned their motor vehicles so that, en route to UPS, Maury Popowich was "sandwiched" between them. In addition to menacing him with sudden stops and starts and near sideswipes, at a point across the street from the UPS terminal they trapped him between their cars for 10 minutes; he was caught in the middle of the street and could not move. When they finally freed him to make delivery, the pickets attempted to persuade the UPS terminal people not to accept the "struck goods."
The bumping and blocking and threats at the Popowich loading dock were repeated on a regular basis after August 2. On a number of other occasions, the pickets led by Yeoman and one Cameron Laws ("Laws"), also provided a similar "escort" to the Popowich point of destination, and made threats and attempted to dissuade carriers from accepting delivery of goods at the point of destination. On one occasion, Maury Popowich was cut off on the road and nearly forced into a parked car in the midst of what turned into a 60 m.p.h. chase. On several occasions the carrier refused to accept the Company's goods. As the result of the picketing, carriers would not come to the Company's plant; instead, Maury and David Popowich would meet them at random locations to effect delivery.
On August 6, 1971, at about noon, David Guss, a 76-year old man, stopped into the Popowich plant to pick up an order of watch bands which he resells to jewelry stores. When he left, the pickets crowded around him, jostling and pushing him, and knocked the package from his hands. Each time he sought to recover the package it was kicked further away. Guss went back into the plant, pale and shaken. David Popowich then attempted to escort Guss out of the plant through the pickets. The pickets were standing in a group at the front of the steps. When David Popowich bent over to pick up the package, Laws kicked the package away and one of the other pickets, William McNeill, "kneed" David Popowich in the groin and knocked him down. Maury Popowich then called the Philadelphia Police Labor Squad, who escorted Guss to his car.
The pickets' violence and menacing conduct was also directed against persons who continued to work for the Company during the strike. Linda Schnee, then age 16, and a 10th grade student at Little Flower High School, was working for the summer at the Company. Her friend, Margaret McConnell, was a full-time employee. They normally travelled to work together and called either David or Maury Popowich from a nearby gasoline station for an escort across the picket line, because of previous threats from the pickets. On August 9, at about 7:20 a.m., as they were approaching the gasoline station, two of the pickets, Maybelle Cockfeld and Teresa Bilone, came up behind them. Cockfeld threw a soda can at them and hit the back of McConnell's head. They grabbed Schnee by the hair and pushed her into a parked car, and then pulled her into the phone booth, banging her against the booth until she fell; they then pulled her up and threw her down, injuring her leg and head. Bilone dragged McConnell, as she was attempting to call the Popowichs, out of the booth and hit her across her face with her open hand. During the incident Schnee and McConnell were also subjected to vile epithets. After the incident, David Popowich picked Schnee up at her home and took her to work and drove her home in the evening. On a subsequent occasion, while the girls were working in the office, Cockfeld threatened to throw a brick at them.
There were numerous other incidents involving violence and threats. On one occasion, Maury Popowich was hit by Laws in the left ear. On another occasion, he was menaced by one of the pickets with a knife, and on still another hit with a rock in the ribs. One of the pickets named McCoy shoved David Popowich in the chest and menaced him with a bottle. On a number of occasions the pickets slashed the tires of Company vehicles with a stiletto. And on one occasion David Popowich was trying to drive out of the driveway in his station wagon when the pickets began to rock it. Thereupon, and amidst much laughter, one of the pickets lay down in the street and claimed that David Popowich had intentionally struck her with the vehicle, causing her to be injured. The ...