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Kobell v. United Food and Commercial Workers International Union


April 15, 1986


Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh) D.C. Civil No. 85-905).

Author: Stapleton

Before: GARTH and STAPLETON, Circuit Judges, and FULLAM, District Judge*fn*

STAPLETON, Circuit Judge:

This is an appeal from a district court's order granting a preliminary injunction request by a Regional Director of the National Labor Relations Board (NLRB) against the appellant union's recognition picketing. We affirm.


Appellant is a labor organization, seeking to represent the employees of Vic's Markets, Inc. ("Vic's"). Vic's sells grocery products at its retail store in Mars, Pennsylvania. Appellant is not the certified or recognized representative of the Vic's employees at its Mars store.

In May of 1984, appellant began a campaign to organize the employees of Charley Brothers Company, Inc., the previous operator of Vic's Mars store. Soon after embarking on this campaign, appellant learned that Charley Brothers had extended recognition to and entered into a collective bargaining agreement with the United Steelworkers of America and its Local 14744 (the "Steelworkers").

In August of 1984, appellant filed unfair labor practice charges against Charley Brothers, alleging violations of National Labor Relations Act (NLRA) Sections 8(a)(1)-(3), 29 U.S.C. §§ 158(a)(1)-(3) (1982).*fn1

On September 14, 1984, Gerald Kobell, a Regional Director of the NLRB, filed unfair labor practice charges against Charley Brothers. On September 24, 1984, Charley Brothers sold its Mars store to Vic's Prior to this sale, Vic's was put on notice of the pending unfair labor practice charges. Following the sale, Vic's extended recognition to the Steelworkers. In October of 1984, appellant filed unfair labor practice charges with the NLRB alleging that Vic's had recognized the Steelworkers as the exclusive bargaining agent of Vic's employees in violation of NLRA Sections 8(a)(1)-(3). On November 14, 1984, the Regional Director of the NLRB issued an unfair labor practice complaint against Vic's.

The complaint alleged that Vic's had continued the unfair labor practices of Charley Brothers. Specifically, the Regional Director alleged that Vic's was on notice of and failed to remedy the following unfair labor practices of Charley Brothers: the interrogation of employees about their activities on behalf of appellant; the destruction of authorization cards given to employees by appellant; the participation in the solicitation of signatures on the Steelworkers' authorization cards; the denial of appellant's access to the workplace for organization purposes while permitting the Steelworkers access; the making of statements that collective representation was possible only through the Steelworkers and that Charley Brothers had already selected a Steelworkers steward; the fraudulent utilization of a meeting attendance list as a collective bargaining agreement employee ratification list; the recognition of the Steelworkers as the exclusive employee collective bargaining agent when the Steelworkers did not represent an uncoerced majority of the employees; and the deduction of Steelworkers' dues from employee pay, regardless of whether the employees had authorized such a deduction. The complaint further alleged that Vic's recognized the Steelworkers, adopted the Steelworkers' collective bargaining agreement, and deducted Steelworkers' dues from employees' pay.

A hearing was scheduled for December 4, 1984. However, at the end of November, 1984, a Settlement Agreement was announced under which Vic's agreed to post a notice for sixty days informing employees that it would no longer continue in Charley Brothers' unfair labor practices, that it would no longer give effect to the collective bargaining agreement with the Steelworkers, that it would not recognize the Steelworkers as exclusive collective bargaining representatives unless and until lawfully elected by the employees and certified by the NLRB, and that it would repay all previously deducted Steelworkers dues. Following Vic's full compliance with the Settlement Agreement, the NLRB Regional Director, on December 26, 1984, withdrew his complaint, over appellant's objection. Appellant appealed this decision to the NLRB General Counsel, who approved it on January 22, 1985.

From September, 1984 until the preliminary injunction was issued, appellant picketed Vic's Mars store. On April 4, 1985, Vic's filed an unfair labor practice charge with the NLRB claiming that appellant was picketing in violation of NLRA Section 8(b)(7)(C). 29 U.S.C. § 158(b)(7)(C) (1982).*fn2

The NLRB Regional Director investigated the charge and filed a complaint with the NLRB. He then petitioned the district court for the Western District of Pennsylvania for injunctive relief under NLRA Section 10(1), 29 U.S.C. § 160(1) (1982).*fn3 After an evidentiary hearing, the district court found that the NLRB had proffered sufficient evidence to indicate that the Regional Director had reasonable grounds to believe that appellant was picketing Vic's in violation of NLRA Section 8(b)(7)(C). The court further found that injunctive relief was just, proper, and necessary to prevent further picketing. This timely appeal followed.


The district court found reasonable cause to believe that, since September 24, 1984, appellant had picketed the Mars store in order to force Vic's to recognize and bargain with it as the representative of the store's employees. Since the court also found that appellant was not currently certified or recognized as the bargaining representative of those employees and had not petitioned for a representation election, it further concluded that there was reasonable cause to believe the appellant's picketing violated Section 8(b)(7)(C) of the NLRA.

Appellant does not challenge these findings. Rather it argues that injunctive relief should have been denied because the Regional Director invoked NLRA Section 10(1) in violation of the second "proviso" of that section which reads as follows:

Provided further. That . . . [a Regional Director] shall not apply for a restraining order under [this section based on NLRA Section 8(b)(7)] . . . if a charge against the employer under [NLRA Section 8(a)(2)] . . . has been filed and after the preliminary investigation, he has reasonable cause to believe that such charge is true and that a complaint should issue.

In support of this contention, appellant argued before the district court that the settlement of its Section 8(a)(2) charges against Vic's was legally invalid and the Regional Director's withdrawal of his complaint a legal nullity because the NLRB has failed to provide appellant with an evidentiary hearing on its objections to the settlement as required by the Administrative Procedure Act and Leeds & Northrup Co. v. NLRB, 357 F.2d 527 (3d Cir. 1966). For these reasons, appellant insisted that its Section 8(a)(2) charge had not been remedied and that the proceedings resulting from that charge were still pending before the NLRB.

The Regional Director responded that all of appellant's Section 8(a)(2) charges had been addressed and fully remedied by the settlement that no presettlement hearing was legally required, and that, in any event, relief was available under Section 10(1) when a previously pending Section 8(a)(2) charge had been resolved in this manner, whether or not procedural errors had occurred in the proceedings before the Board.

In response to appellant's argument based on the second proviso of Section 10(1), the district court found as a matter of fact, (1) that the Section 8(a)(2) "charge . . . [had] been fully remedied by the terms of a Settlement Agreement entered into by Vic's Markets", and (2) that "no charge [was] . . . currently pending before the Board under Section 8(a)(2) . . . . " It then concluded, as a matter of law, that Section 10(1) was applicable and authorized injunctive relief on the facts before it. Since the district court did not address Leeds & Northrup Co. v. NLRB or the issue of whether a presettlement hearing was required, we read the district court's conclusions of law to accept the view that Section 10(1) relief is available on the facts of this case whether or not there was procedural error before the Board.


We cannot say that the factual findings of the district court are clearly erroneous. Indeed, appellant does not maintain that there is any evidentiary deficiency in the record before the district court.*fn4 Rather, it contends that, as a matter of law, (1) a settlement arrived at without a presettlement hearing cannot "fully remedy" a Section 8(a)(2) charge, and (2) the Section 8(a)(2) complaint remained pending before the Board despite the Regional Director's purported withdrawal.

Because the district court's factual findings are not clearly erroneous, we accept as historical fact that, as of the time of the application for an injunction, the employer's Section 8(a)(2) violation had been fully remedied and no further proceedings were expected before the NLRB on the Section 8(a)(2) complaint absent a successful appeal and a return of the case for an evidentiary hearing on the settlement. Given these facts, we conclude that the district court's interpretation of Section 10(1)'s second proviso was not legally erroneous. In reaching this conclusion, we, like the district court, find it unnecessary to address the Leeds issue.

We believe the appellant's formalistic argument ignores the interrelationship among NLRA Sections 8(a)(2), 8(b)(7), and 10(1) and the Congressional intention behind their enactment. Section 8(b)(7)(C) prohibits organizational or recognitional picketing by an uncertified union unless an election petition is filed under NLRA Section 9(c) within a reasonable period of time, not to exceed thirty days. If no such petition is filed, continuation of the picketing beyond the reasonable period becomes an unfair labor practice. See, e.g., NLRB v. Suffolk County District Council, 387 F.2d 170, 173 (2d Cir. 1967), citing with approval International Hod Carriers, Local 840 (Blinne Construction Co.), 135 N.L.R.B. 1153, 1167 (1962); Dayton Typographical Union v. NLRB, 117 U.S. App. D.C. 91, 326 F.2d 634, 636 (D.C. Cir. 1963); Meltzer, Organizational Picketing and the NLRB , 30 U. CHI. L. REV. 78, 79-83 (1962). Section 8(b)(7)(C) thereby removes the threat to employees' free choice by encouraging prompt resort to the Board's election machinery, rather than the economic pressure of picketing, as the method for resolving questions of representation.

Congress's concern with the effects of proscribed recognitional and organizational picketing is further reflected by its amendment to Section 10(1) to include this unlawful conduct within the "mandatory" injunction provisions of Section 10(1). When taking this action, Congress recognized only one, limited situation in which it would be inappropriate to preliminary enjoin under Section 10(1) picketing allegedly violative of NLRA Section 8(b)(7) - namely, where the picketed employer is unlawfully recognizing or otherwise giving illegal assistance to another labor organization.

The legislative history of the second proviso of Section 10(1) makes it clear that this narrow exception to the otherwise mandatory Section 10(1) injunction was intended to apply in situations where the picketed employer has already sought to entrench a "sweetheart" union in violation of the employees' right to free choice. The legislative history is replete with discussions of the need to safeguard picketing unions against any possible injustice that might flow from a rule that would preclude their picketing while the employer has unlawfully recognized another union. See comments of Sen. Prouty, 105 CONG. REC. S5961-62, reprinted in II LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959 (II "LEG. HIST. LMRDA") at 1184-85 (1959); comments of Sen. Morse, 105 CONG. REC. S5966, II LEG. HIST. LMRDA at 1189; comments of Mr. Previant, Special Counsel for the International Brotherhood of Teamsters, 105 CONG. REC. H9693-9694, II LEG. HIST. LMRDA at 1493-94; comments of Sen. Barry Goldwater, 105 CONG. REC. A8357-58, II LEG. HIST. LMRDA at 1828-29. Thus, Congress was concerned that absent a restriction to Section 10(1), a "sweetheart" union would enjoy a superior position over any competing union in obtaining the employees' support. Accordingly, the proviso was intended to prevent an unlawfully assisted union from enjoying the benefits and advantages of its illegal assistance while, at the same time, an unassisted, competing union is being enjoined from organizational or recognitional picketing.

As earlier noted, the second proviso of Section 10(1) bars a Regional Director from seeking to enjoin union picketing if a Section 8(a)(2) charge has been filed against the employer and if he "has reasonable cause to believe that such charge is true and that a complaint should issue." Appellant acknowledges, as it must, that the existence of these three prerequisites of the proviso at one point in time does not permanently bar Section 10(1) relief. The dispute in this case is when the Regional Director's disability terminates. Given the rationale for this narrow exception to Section 10(1) and the wording of the text, we believe the disability should terminate when the Regional Attorney no longer has reason to believe that the Section 8(a)(2) charge is "true" and is no longer pursuing the complaint before the Board. When, as here, the Section 8(a)(2) violations have been fully remedied and there are no ongoing proceedings before the Board, it seems highly unlikely that Congress intended union conduct in violation of Section 8(b)(7) to be immune from judicial intervention.

Shortly before the Regional Director instituted his Section 10(1) proceeding in the district court, appellant filed with this Court a petition to review the approval of the informal settlement and the purported withdrawal of the complaint. In that proceeding, we have today reaffirmed that, under Leeds, appellant was entitled to a presettlement evidentiary hearing and the Regional Attorney's withdrawal of the complaint was not authorized by the Act. United Food & Commercial Workers Union, Local No. 23 v. N.L.R.B., 788 F.2d 178 (3d Cir. 1986). This conclusion does not, however, control the disposition of the issu posed in this case. We believe Section 10(1) must be given a practical construction which reflects its purpose and that applications under that section must be disposed of based upon the facts as they appear at the time the district court is required to make a ruling. From this perspective, the possibility that the Section 8(a)(2) proceeding against Vic's, because of Leeds, might be returned to the Board at some time in the future, did not require the district court to countenance union conduct violative of Section 8(b)(7) when the offending conduct of the employer was found to have ceased and been fully remedied.*fn5


The judgment of the district court will be affirmed.

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