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May 29, 1981

NATIONAL LABOR RELATIONS BOARD, Peter w. Hirsch and William Lubbers, General Counsel, Defendants

The opinion of the court was delivered by: TROUTMAN

THE COURT: Good morning. Because this is an emergency matter requiring immediate attention, we shall dispose of it from the bench without the niceties of what sometimes is called a formal opinion.

The plaintiff, engaged in the business of food producing, seeks injunctive relief, namely, a temporary restraining order staying an administrative hearing to be held May 26, 1981, pending resolution of the issues here presented. Plaintiff contends that the defendant National Labor Relations Board, NLRB, is prosecuting unfair labor practices against plaintiff notwithstanding the fact that an administrative assistant has asserted that several of the cases upon which the labor complaint is based are without merit.

 The Regional Director of the NLRB filed unfair labor practices against plaintiff as a result of a representation election held in June, 1980. The union had filed and subsequently withdrew objections to the election in September of 1980. The union also filed a series of unfair labor practice charges against the plaintiff upon which the Regional Director of the NLRB acted. The administrative hearing scheduled for May 26, 1981, will determine the representation and unfair labor practice issues.

 Plaintiff fears that, absent grant of the requested relief, it will be prevented from receiving a full and fair administrative hearing and will, as a result, suffer substantial economic harm. Plaintiff contends that litigation of the case, in light of the alleged admission that some of the charges lack merit, violates the National Labor Relations Act, 29 U.S.C., Section 151 et seq., as well as 29 C.F.R., Code of Federal Regulations, No. 101.8. Plaintiff further complains that defendants have refused and continue to refuse to permit NLRB employees to testify and/or produce documents essential to the plaintiff's defense at the administrative hearing. Plaintiff considers this withholding of information violative of its right of due process under the Fifth Amendment. Plaintiff asks this Court to decide which of the charges have merit, if any, and to order production of documents deemed necessary by plaintiff for a fair administrative hearing.

 Preliminarily, defendants question the power of this Court to hear plaintiff's complaint. The action of the NLRB regarding representation and unfair labor practice claims cannot be challenged in an independent suit in federal district court unless the Board violates a clear statutory mandate. See Leedom v. Kyne, 358 U.S. 184, 79 S. Ct. 180, 3 L. Ed. 2d 210 (1958), or the plaintiff asserts the deprivation of a constitutional right which is not obviously frivolous. Fay v. Douds, 172 F.2d 720 (Second Circuit 1949). Thus, plaintiff relies not wholly, of course, but heavily upon Leedom v. Kyne and Fay v. Douds.

 Interestingly, Fay v. Douds has been criticized or questioned and at least not followed in various cases and under various situations. We here call attention to the case of Grutka v. Barbour, 549 F.2d 5 (Seventh Circuit), cert. denied, 431 U.S. 908, 97 S. Ct. 1706, 52 L. Ed. 2d 394 (1977); Amalgamated Meat Cutters v. Allen, 423 F.2d 267 (Eighth Circuit 1970), Greensboro Hosiery Mills, Inc. v. Johnston, 377 F.2d 28 (Fourth Circuit 1967); Boire v. Miami Herald Publishing Company, 343 F.2d 17 (Fifth Circuit), cert. denied, 382 U.S. 824, 86 S. Ct. 56, 15 L. Ed. 2d 70 (1965); Utica Mutual Insurance Co. v. Vincent, 375 F.2d 129 (Second Circuit), cert. denied, 389 U.S. 839, 88 S. Ct. 63, 19 L. Ed. 2d 102 (1967). Also, see NLRB v. Interstate Dress Carriers, Inc., 610 F.2d 99 (Third Circuit 1979).

 The plaintiff, attempting to fit the circumstances of this case into the latter mold, claims that defendants are prosecuting plaintiff for pursuing the issues involved in this case with knowledge that some or all of the charges lack merit in violation of the National Labor Relations Act and the regulations issued thereunder. Defendants' failure to supply plaintiff with requested information, argues plaintiff, will result in the deprivation of plaintiff's property rights in violation of the Fifth Amendment by exposing the plaintiff to substantial fines, penalties, fees, costs and expenses.

 As the plaintiff logically contends, the situation is not unlike that existing in NLRB vs. Capitol Fish Company, 294 F.2d 868, 48 LRRM, 3067 (Fifth Circuit 1961). Now, in that case, Capitol Fish Company case, the respondent contended that the findings of the examiner were not supported by substantial evidence. That case involved a petition by the National Labor Relations Board for enforcement of its order. There the moving party contended that it had been denied the right to introduce material evidence based upon the contention that the general counsel's refusal to permit the attorney who investigated the case to testify and the trial examiner's quashing of the subpoena issued to the attorney constituted a violation of due process. There, the report shows, that "At the outset of the hearing, the respondent moved that the hearing be postponed "until such time as the General Counsel grants permission for Mr. Miller to testify.' The trial examiner denied the motion on the ground that the general counsel had already denied the request. The investigating attorney was present and represented the general counsel at the hearing. Another Board attorney moved to quash the subpoena on the grounds that "the permission to testify had been denied and the material is irrelevant anyway.' The trial examiner granted the motion and revoked the subpoena."

 "The unrebutted testimony of one Robert Poole, who voluntarily left Capitol Fish Company for a better paying job, supported the respondent's contention that the investigating attorney's testimony would have an important bearing on the credibility of all of the witnesses who testified against Capitol Fish."

 The court there noted in remanding the record for further proceedings as follows: "The record indicates that the trial examiner did not consider whether the General Counsel was right or wrong in refusing to allow the investigating attorney to testify."

 Now, in Capitol Fish, the court was asked to look back and determine whether due process had been afforded the plaintiff. Here we are asked to look forward and assume that due process will be denied.

 Notwithstanding grave doubts concerning the continuing vitality of the Fay exception, as reflected in the cases cited above, and notwithstanding some doubts as to plaintiff's characterization of the process due it under the Fifth Amendment, the Court will assume jurisdiction for the purpose of this hearing and, in order to expedite consideration of this matter, will excuse the so-called exhaustion requirement.

 To obtain preliminary injunctive relief, the plaintiff must demonstrate, one, that irreparable injury will occur if relief is not granted until a final adjudication on the merits can be made; two, that there is a reasonable probability of success on the merits; three, that the possibility of harm to the non-moving party, as well as to any other interested party, will be minimal; and, four, that harm to the public, when relevant, will not be likely. See Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351 (Third Circuit 1980). Accord, Kennecott v. Smith Corp., 637 F.2d 181 (Third Circuit 1980), Fitzgerald v. Mountain Laurel Racing Corp., 607 F.2d 589 (Third Circuit 1979).

 To prove "irreparable injury" plaintiff must show an "imminent threat" rather than the mere "possibility of remote future injury." Again, see Continental Group, Inc. v. Amoco. And also see generally Perkins v. Wagner, 513 F. Supp. 904 (E.D.Pa.1981); ...

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