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Pascarell for and on Behalf of N.L.R.B. v. Vibra Screw Inc.

filed: June 7, 1990; As Amended June 12, 1990.


On Appeal From the United States District Court For the District of New Jersey; D.C. Civ. No. 89-3845.

Becker and Greenberg, Circuit Judges and Dumbauld,*fn* District Judge.

Author: Becker


BECKER, Circuit Judge.

Under § 10(j) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(i), the National Labor Relations Board may request interim injunctive relief in federal district court against unfair labor practices pending the Board's own administrative determination as to whether those practices have in fact been committed.*fn1 In making this request, the Board is not acting in the interest of those employees who have allegedly been the victims of unfair labor practices, but in the public interest. Eisenberg v. Wellington Hall Nursing Home, 651 F.2d 902, 906-07 (3d Cir. 1981); Eisenberg v. Hartz Mountain Corporation, 519 F.2d 138, 141-42 (3d Cir. 1975); Senate Report No. 105. 80th Cong. 1st Sess. 8, 1 Legislative History of the Labor Management Relations Act, 1947, at 414. The public interest at stake is the "[promotion of] wholesome and mutually acceptable labor relations and the settlement of labor disputes through collective bargaining between employees and their employer." Hartz Mountain, 519 F.2d at 142.

In determining whether interim relief is appropriate under § 10(j), a district court must evaluate whether there is "reasonable cause" to believe that an unfair labor practice has occurred and whether an injunction would be "just and proper." See Kobell v. Suburban Lines, 731 F.2d 1076, 1088-89 (3d Cir. 1984). The Board requested a § 10(j) injunction in this case based on its belief that appellee, Vibra Screw, Inc. ("Vibra"), had refused to bargain with the Board certified Union and had harassed and retaliated against certain workers trying to organize that union. Without determining whether there was reasonable cause, the district court denied the Board's § 10(j) request on the ground that an injunction would not be "just and proper." The district court's determination was based on its findings that the bargaining unit could easily reconstruct itself should the Board finally determine that Vibra had committed unfair labor practices, that Vibra's practices had not had a chilling effect on union activity, and that the Board did not act expeditiously enough in trying to secure the injunction. The Board's Regional Director appealed.*fn2 Because we find that the district court misinterpreted the just and proper standard, we will reverse.


Vibra Screw is a family-owned business, located in Totowa, New Jersey, which manufactures equipment for movement and measurement of powder-like materials. On December 13, 1988, Luis Fonseca, a representative of the International Ladies Garment Workers' Union, AFL-CIO, and approximately 35 employees of Vibra, met with Eugene Wahl, Vibra's president, and told Wahl that the Union represented a majority of the employees and wished to be recognized as the employees' collective bargaining representative. On December 16, 1988, the Union filed a petition for an election.

On January 4, 1989, the employees selected two fellow employees, Messrs. Moncayo and Santo, to represent them at a pre-election meeting. On January 5, Moncayo and Santo notified as many co-workers as possible about the upcoming meeting. Later that morning, their supervisor, John Herman, told them that because they had not been working enough overtime, they would no longer be allowed to work overtime. Prior to this, employees commonly worked overtime, but always on a voluntary basis. App. 91-92; 111-12; 143; 207-08; 225.

On February 2, the Union won the election. On February 10, the Union was certified as the exclusive collective-bargaining agent of the bargaining unit. On February 13, Moncayo, one of the two original union representatives, returned to work after having been on disability leave since January 15 for a work-related foot injury. He was informed by the production manager that he was being transferred from his previous department, Assembly, which was part of the bargaining unit, to the Test Lab, which was not part of the bargaining unit. On February 28, Moncayo was fired, allegedly for repeatedly leaving his work station. Moncayo testified that he was not at his work station at the times complained of because of scheduling problems incident to his transfer (the new department had different hours), or because of doctor's appointments, all of which he had properly accounted for.

On March 21, Vibra changed the work hours of all employees without notifying the Union. On March 28, Mr. Bermudez, a spare parts clerk, wore a Union badge and hat to work in support of the negotiators, despite his supervisor's previous warning that he should keep his Union support to himself. On March 31, Bermudez was fired for not "hustling" enough.

On March 29, Vibra, four Union officials and five employee members of the bargaining committee, Messrs. Drol, Bocanegra, Rodriguez, Santo and Grinyard, met for their first bargaining session. By April 19, Drol, Bocanegra, Rodriguez and Santo had all been fired. Drol and Bocanegra were fired for refusing to work overtime (the bargaining committee members had decided to refuse to work overtime as a means of protesting the Moncayo and Bermudez discharges) even though there was no policy requiring employees to work overtime. Rodriguez and Santo were fired, for "poor work habits" and "standing idle during work time." App. 358, 359. These last two discharges brought the total number of active union members fired to six in less than two months.

A negotiating session was scheduled for April 12, but was canceled by Vibra because of Wahl's travel plans. Nonetheless, on that day, the Union submitted extensive proposals for an initial collective bargaining agreement. Vibra tried to reschedule the meeting for the week of May 8, but the Union did not respond until May 17. When it did, it requested that Vibra produce certain outstanding documentation. A new negotiating session was scheduled for June 29.

On June 29, the four discharged members of the committee appeared at the scheduled negotiating session. However, the Company refused to participate in a meeting in which those four employees were present, despite being advised by the Union's attorney that, under the law, ...

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