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Kobell v. United Food and Commercial Workers International Union

April 15, 1986

GERALD KOBELL, REGIONAL DIRECTOR FOR REGION SIX OF THE NATIONAL LABOR RELATIONS BOARD, FOR AND ON BEHALF OF THE NATIONAL LABOR RELATIONS BOARD
v.
UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, LOCAL 23, AFL-CIO-CLC, APPELLANT



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.

I

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 ...


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