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Hoeber For and on Behalf of N.L.R.B. v. Local 30

filed: July 30, 1991.


Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 90-07899.

Hutchinson, Cowen and Garth, Circuit Judges.

Author: Garth


GARTH, Circuit Judge

This appeal arises as part of a complex, ongoing battle over both the forum for, and the timing of, relief for an alleged breach of contract. Underlying the instant appeal is the district court's denial of a petition by the National Labor Relations Board for an injunction temporarily prohibiting the continued prosecution of a civil action brought by a union to enforce an arbitral award in the union's favor. Because we believe that the district court did not clearly err in finding the facts which formed the basis for its refusal to grant the injunction, and did not abuse its discretion in so refusing, we will affirm the district court's denial of the petition.


Petitioner-Appellant, Francis W. Hoeber ("Hoeber") is the Acting Regional Director of the Fourth Region of the National Labor Relations Board ("N.L.R.B."). Hoeber, for the N.L.R.B., seeks to enjoin the prosecution of a civil action by Respondent-Appellee Local 30, United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, AFL-CIO ("Local 30"), pending final disposition of certain matters currently before the N.L.R.B.. We begin by outlining the facts which led up to Hoeber's Petition for Injunction.

Over the past several years, Gundle Lining Construction Corporation ("Gundle") has performed liner installation work at the Ocean County Landfill in Lakehurst, N.J. In November 1988, Gundle had a contract to perform lining work in one of the "cells" of the landfill. At that time, Gundle entered into a Memorandum Agreement with Local 30. In the Memorandum Agreement, Gundle agreed to abide by certain collective bargaining terms and conditions "as of 11/18/88 through completion." The project begun in the fall of 1988 was completed by February 1989. Later that year, Gundle again undertook a project at the Ocean County Landfill. This time, Gundle hired workers represented by Local 172, Laborers International Union of North America, AFL-CIO ("Local 172"), rather than members of Local 30, to do the work. Local 30 took the position that this work was covered by the Memorandum Agreement, and therefore that Gundle was contractually bound to hire Local 30's workers.

When Local 30 saw work starting up again at the landfill, it apparently believed the work was being done by non-union employees, and it set up a picket line. Within about two or three hours, however, Local 30 realized that the workers were from Local 172. Local 30 then promptly removed its picket line. On November 13, 1989, Gundle filed an unfair labor practice charge against Local 30, alleging that Local 30 had violated § 8(b)(4)(D) of the National Labor Relations Act ("NLRA").*fn1 The next day, Local 30 informed Gundle that it would file a grievance over Gundle's failure to abide by the Memorandum Agreement. Local 30 then requested that a Joint Conference Board meet to hear and determine its grievance against Gundle. The Joint Conference Board met on January 3, 1990 to consider Local 30's grievance. The next day, Local 30 advised the N.L.R.B. that it was no longer demanding assignment of the work at the landfill to Local 30, but only sought to reserve its right to pursue a remedy for Gundle's alleged breach of the Memorandum Agreement. Local 30 thus limited its claim to damages, not to the specific work.

On January 17, 1990, the Joint Conference Board issued its decision, which held that Gundle had violated the Memorandum Agreement by hiring Local 172 rather than Local 30 for the landfill job. It directed Gundle to compensate individuals from Local 30 who were deprived of work opportunities by making appropriate payments.

On March 13 and 21, 1990, the N.L.R.B. held a hearing pursuant to Section 10(k) of the NLRA ("the 10(k) hearing").*fn2 On March 26, 1990, Local 30 filed Civil Action No. 90-2105, which is a lawsuit pursuant to § 301 of the NLRA, 29 U.S.C. § 301 ("the § 301 suit"), seeking court enforcement of the Joint Conference Board's decision. On June 28, 1990, the N.L.R.B. issued its 10(k) decision, awarding the disputed work to Local 172. Although the Board was aware of the contract entitling Local 30 to the work, it was simultaneously confronted with Gundle's newly formed, conflicting contract with Local 172. Despite the existence of two apparently valid, albeit conflicting contracts, the Board was required, under National Labor Relations Board v. Radio Engineers, 364 U.S. 573, 5 L. Ed. 2d 302, 81 S. Ct. 330 (1961), to make an affirmative award of the work as between the employees of the competing unions. Since both Local 30 and Local 172 now had contracts entitling them to the work from Gundle, the Board made its decision based on other factors. In particular, as the district court noted, the Board took into consideration "employer preference, area practice and efficiency of operations." Hoeber, for and on behalf of N.L.R.B. v. Local 30, 759 F. Supp. 212, 215 (E.D. Pa. 1991). The Board further emphasized that Local 30 was not to coerce Gundle into assigning the work to it by any means proscribed by NLRA § 8(b)(4)(D).

Since the 10(k) decision, Local 30 has not engaged in any picketing, boycotting, or other activity relating to this dispute, other than to pursue court enforcement of the decision of the Joint Conference Board through its § 301 suit. The N.L.R.B., however, characterizes the pursuit of court enforcement of that decision as itself a coercive practice in violation of § 8(b)(4)(D). The N.L.R.B. therefore seeks to invoke NLRA § 10(1)*fn3 to temporarily enjoin Local 30 from continuing to litigate the § 301 suit pending final disposition by the N.L.R.B. of Gundle's unfair labor practice complaint against Local 30.


The district court denied the N.L.R.B.'s petition for a § 10(1) injunction. In explaining its holding, the court first noted that NLRA § 10(1) requires the regional director of the N.L.R.B. to seek injunctive relief in federal court whenever he has "reasonable cause" to believe that certain unfair labor practices have occurred. The district court is not required to grant injunctive relief under § 10(1), however, unless it deems such relief "just and proper." The district court correctly stated that it may find "reasonable cause" to be present when the alleged facts and legal theories underlying the Regional Director's petition are "substantial and not frivolous." 759 F. Supp. at 216 (citing Samoff v. Building Trades Council of Philadelphia, 475 F.2d 203, 207 (3rd Cir. 1973) [vacated on grounds of mootness, 414 U.S. 808, 38 L. Ed. 2d 44, 94 S. Ct. 151 (1973)]). There is no dispute over this standard.

Secondly, the district court held that the issuance of an injunction is "'just and proper'" where such relief is "'necessary to prevent a frustration of the remedial purposes of the Act.'" 759 F. Supp. at 216 (quoting Scott v. El Farra Enterprises, Inc., 863 F.2d 670, 674 (9th Cir. 1988)). In determining the remedial purpose of § 10(1), the district court looked to the Senate Report behind the bill, which stated that the bill's purpose was "the prompt elimination of the obstructions to the free flow of commerce and encouragement of the practice and procedure of free and private collective bargaining." S. Rep. N. 105, 80th Cong., 1st Sess. 8, 27 (1947), quoted in Hoeber, 759 F. Supp. at 216.

For the district court to enjoin Local 30's lawsuit under 10(1), it would have had to find that by filing the lawsuit Local 30 engaged in an unfair labor practice. The district court held that the nature of the conflict, if any, between Local 30's contractual claim and the N.L.R.B.'s 10(k) decision is significant for purposes of determining whether Local 30's legal proceedings constituted an unfair labor practice under § 8(b)(4)(D). If a conflict is created, the 10(k) provision must ...

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