On Appeal from the United States District Court for the District of New Jersey (D.C. No. 85-1876).
BEFORE: GARTH, and BECKER, Circuit Judges and HUYETT, District Judge*fn*
Petitioner Arthur Eisenberg, the Regional Director of the Twenty-second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, filed with the court below a petition pursuant to section 10(j) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(j),*fn1 for a temporary injunction, requiring respondent Lenape Products, Inc. to offer certain discharged employees interim reinstatement to their former positions. Concluding that imposition of an injunction was not just and proper under all of the circumstances, the district court denied the petition for injunctive relief. Because we find that the district court did not abuse its discretion in denying the petition for an injunction, we will affirm.
In his petition for injunctive relief, petitioner Eisenberg alleged that respondent Lenape engaged in "unfair labor practices" within the meaning of section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), by discharging employees who had "ceased work concertedly and engaged in a lawful strike." Pursuant to section 10(j) of the NLRA, 29 U.S.C. § 160(j), the National Labor Relations Board (NLRB or Board), through petitioner Eisenberg, sought injunctive relief pending final disposition of the case, and, in particular, sought an order requiring respondent to reinstate those employees who had been discharged pending a final adjudication by the board.
Respondent Lenape is engaged in the manufacture of ceramic products at four New Jersey locations, each of which constitutes a "division." This action arises from a series of events involving the day-shift employees at Division 3. At the relevant time, there were nine people employed on the day shift, and these individuals were not members of any union and therefore were not represented by a collective bargaining agent. Only the employees at Division 4 had union representation although there is some mention in the record that the employees in Division 1 are now unionized.
The events precipitating this action began on December 27, 1984. On that day, at approximately 10:15 a.m., Charles Bernhardt, Sr., an employee at Lenape and the unofficial spokesman for the day shift employees, telephoned Peter Hexter, the Chief Executive Officer for Lenape and told him that the employees were concerned about the working conditions at Division 3. He then demanded to meet with Hexter at 11:00 a.m. "or else we are going to walk out." Hexter responded that he was not available at 11:00 a.m. but that he could be there at noon. Hexter also suggested that it might be more convenient to meet after the holidays. Bernhardt rejected this suggestion claiming that Hexter was merely trying to give the employees the runaround.
Hexter arrived at the Division 3 plant in approximately 12:05 p.m. to find that the employees had left their jobs. The following day, the employees returned and were told that they were considered to have abandoned their positions and would be replaced by new employees.
Prior to the December 27th employee walk-out dissatisfaction among the employees over working conditions was mounting. Petitioner contends that the dissatisfaction was caused, in large part, by the hiring of Herman Glinecke as "production control manager" for all four divisions. Glinecke allegedly instituted certain changes including (1) new processes for treating ashtrays which caused employees to develop skin rashes and irritations; (2) changes in hours of work without notice; (3) institution of time studies; and (4) disregard for job classifications. Furthermore, the employees were becoming increasingly concerned about health and safety problems within the Division 3 facility including an increasing rat population and exposed electrical wires. Glinecke was allegedly advised of these concerns but never took any remedial action. Moreover, Bernhardt asked Glinecke to contact Hexter to arrange a meeting for the employees with Hexter to discuss employee concerns. Hexter never responded, and it is unclear whether Glinecke ever communicated the concerns of the employees to Hexter.
In early December 1984, the nine employees on the first shift decided to organize a union at Division 3. To this end, they contacted a representative of the Glass, Pottery, Plastic and Allied Workers of America and obtained and signed union authorization cards.
By December 27, the employees decided that they could not accept the working conditions any longer, and Bernhardt therefore placed the telephone call to Hexter. There is a dispute between the parties as to what, if anything, Hexter or other Lenape management personnel knew about the employees' dissatisfaction with the working conditions prior to the walkout. Even the petitioner Board does not contend, however, that Lenape knew that employee dissatisfaction had led to the beginnings of a unionization effort. At most, Hexter may have known, on December 27, 1984, that the employees were acting in concert when they threatened to leave their positions.
Following the walk-out of the nine employees, Hexter met with Helen Brown, President of Lenape to discuss the situation. They concluded that they had to "take a position that even if these people want to come back we cannot allow them back, otherwise we will have chaos with 117 employees, and people will be able to figure out that they can walk out anytime they want . . ." Record at 358. Letters were sent to each of the employees advising them that they had forfeited their positions and would be replaced. Despite requests by the employees that they be permitted to return to their previous positions unconditionally, Lenape management remained firm in its position on the dismissals.*fn2
In response to charges filed by Charles Bernhardt, Sr., the Regional Director issued a complaint and notice of hearing and scheduled a hearing for April 17, 1985. On April 17, 1985, the NLRB authorized the petitioner to petition the district court for injunctive relief pursuant to section 10(j) of the NLRA, 29 U.S.C. § 160(j). Concluding that "the evidence in the record, at least arguably, indicates that the employees were 'acting concertedly'" and therefore that there was reasonable cause to believe that a violation of the NLRA had occurred, the court ...