The opinion of the court was delivered by: FOGEL
This is a petition for a preliminary injunction under § 10(l) of the Labor Management Relations Act of 1947, as amended (hereinafter called the Act), 61 Stat. 149, 73 Stat. 544, 29 U.S.C. § 160(l), to restrain alleged unfair labor practices pending final adjudication by the National Labor Relations Board (hereinafter called the Board).
On January 23, 1974, a complaint was filed with the Board by Richard H. Lawrence (hereinafter called Lawrence), the general contractor for the construction of a library at the Berks County Campus of Penn State University, charging that Local Union No. 492, United Brotherhood of Carpenters and Joiners of America (hereinafter called the Union), was picketing the construction site in violation of § 8(b) (7) (C) of the Act.
This charge was referred to the Regional Director of the Fourth Region of the Board, who concluded, after a preliminary investigation, that there was reasonable cause to believe the charge of an unfair labor practice. Accordingly, that official filed a petition for injunctive relief with this Court pursuant to § 10(l).
A hearing on the petition was held on February 12, 1974, at the conclusion of which the parties were directed to file supplementary memoranda with respect to the factual and legal issues developed during the course of the hearing.
After consideration of the petition, the answer, the memoranda filed in support of and in opposition to the petition, the testimony, exhibits and arguments of counsel at the hearing, we have concluded that petitioner is correct in his assertion that under the guidelines established by judicial decisions interpreting the Act, there is reasonable cause to believe that the respondent Union is committing an unfair labor practice within the meaning of § 8(b) (7) (C).
1. The standard to be applied by the District Court in § 10(l) proceedings.
Before reaching the merits of the petition, we will briefly discuss the standards which bind the District Court in determining whether to grant or deny an injunction sought pursuant to the provisions of § 10(l) of the Act.
The Court of Appeals for the Third Circuit has held that the District Court has a most limited role in § 10(l) cases. In Schauffler v. Local 1291, International Longshoremen's Association, 292 F.2d 182 (3d Cir. 1961), Judge Biggs stated:
"* * * The Section 10(l) procedure reflects the congressional determination that certain unfair labor practices are so disruptive that where there is reasonable cause to believe that they are being engaged in their continuance during the pendency of charges before the Board should not be permitted. * * * 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. * * *"
Schauffler, supra, at 187.
The Court of Appeals in Building and Construction Trades Council reversed a decision of the District Court which had denied an injunction under § 10(l).
"The district court noted that Schauffler set the applicable standard for determining when a § 10(l) injunction should be granted. But it went on to say:
'We do not read § 10(l), as thus construed, to require a District Court, charged with granting injunctive relief under § 10(l) where it is "just and proper", to grant relief based upon legal theories advanced by the Board, which, while thoughtfully presented and not frivolous, are, in the view of the Court, erroneous. ' (Emphasis added.)
This is a misinterpretation of Schauffler. As dictated by that decision, the district courts have a limited role in § 10(l) proceedings. Schauffler requires only that the Board's theory be substantial and not frivolous; and if it is, it does not matter whether the district court ultimately agrees with it or not. The Board met its burden here for we feel that the district court's statement that the Board's theory was 'thoughtfully presented and not frivolous' can fairly be interpreted to mean that the Board's theory was substantial and not frivolous.
This does not mean that a district court must always grant an injunction even though it disagrees with the Board's legal theory. If the district court can characterize the theory as insubstantial and frivolous, it may refuse the injunction. If the Board's theory cannot be so characterized, however, the district court must grant the injunction since this will best effectuate the Congressional policy against disruption of commerce expressed in § 10(l)."
Building and Construction Trades Council, supra at 207 (footnote omitted).
It will be noted that under Schauffler and Building and Construction Trades Council the District Court has virtually no discretion in the issuance or denial of § 10(l) injunctions. If the Board's legal theory can be characterized as insubstantial and frivolous, the District Court may refuse to grant the injunction. If the Board's theory cannot be characterized as insubstantial and frivolous, the District Court must grant the injunction.
In making a factual determination in § 10(l) proceedings, the District Court merely determines that there is "reasonable cause to believe that the elements of an unfair labor practice are present", Schauffler, supra, at 187, of 292 F.2d and is not required to resolve disputed issues of fact, Kennedy v. Sheet Metal Workers International Association Local 108, 289 F. Supp. 65, 86, (C.D. Cal. 1968).
Mindful of our limited role in § 10(l) proceedings, we will now turn to the merits of the petition.
Section 8(b) (7) (C) of the Act provides in pertinent part as follows:
(b) It shall be an unfair labor practice for a labor organization ...