# Stryjewski v. Local Union No. 830

> Supreme Court of Pennsylvania · September 26, 1967 · 426 Pa. 512

URL: https://www.frixlaw.com/law-library/cases/9757888

## Case

- **Full name:** Stryjewski, Appellant, v. Local Union No. 830
- **Court:** Supreme Court of Pennsylvania
- **Decided:** September 26, 1967
- **Citations:** 426 Pa. 512; 233 A.2d 264; 66 L.R.R.M. (BNA) 2321; 1967 Pa. LEXIS 600
- **Precedential status:** Published
- **Opinion:** Dissent by Roberts
- **Judges:** Bell, Cohen, Eagen, Jones, Musmanno, O'Brien, Roberts
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9757888

## Opinion text

*522 Dissenting Opinion by
Mr. Justice Roberts:
By its decision today tlie majority lias managed to perpetuate tlie very “no man’s land” 1 which Congress sought to abolish by section 14(c) of the L.M.R.D.A. 2 As the Court correctly notes, the situation produced by the decision in Guss v. Utah Labor Relations Board, 353 U.S. 1 , 77 S. Ct. 598 (1957) was a troublesome one, for it resulted in a state court being forced to shut its doors to a litigant with a valid complaint even though the N.L.B.B. had also declined jurisdiction. To eliminate this “no man’s land”, where rights existed without remedies, Congress enacted section 14(c) of the L.M.B.D.A. Although the clear intention of this act is to allow the state courts to assume jurisdiction in labor disputes where it is obvious that the N.L.B.B./ by “rule of decision or by published rules” will decline to hear the case, nevertheless the majority has construed the language of § 14(c) to require that the N.L.B.B. actually refuse jurisdiction in each particular case before the state judicial forum becomes available. Such a reading completely ignores the possibility that the board, wholly consistent with §14(c), may decline jurisdiction prospectively over an entire class of cases by its published rules and jurisdictional standards. In *523 fact, this very case presents a situation where the majority of this Court has re-created the “no man’s land.”
It is true, as the majority points out, that the Supreme Court of the United States has not yet passed precisely on the construction of §14(c). Nevertheless, in Radio & Television Broadcast Technicians, Local 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255 , 85 S. Ct. 876 (1965), the Court indicates quite strongly that §14(c) allows a state court to anticipate N.L.R.JB. reaction to a particular matter by determining whether that controversy falls without previously announced N.L.R.B. jurisdictional standards. In deciding that the Radio & Television dispute was not shown by the employer to be “one of those which the Board will decline to hear”, the Court used, as its measuring rod, the previously announced figure of $100,000 in gross receipts given by the N.L.R.B. as the required jurisdictional amount in cases involving radio1 stations. Even the language used to deny relief to the employer speaks of determining if a case is one which the board “will decline to hear.” 380 U.S. at 256 , 85 S. Ct. at 877 . (Emphasis «/applied.) Such language certainly imparts an antix-ipatory flavor to § 14(c).
The majority opinion recites that both interpretations of §14 (c), the anticipatory approach and the “wait and see” method, have found favor in state tribunals. It cites two cases, one from California, the other from Colorado, as illustrative of this split of authority. Then, for no apparent reason other than an unsubstantiated fear of chaos in our national labor policy, the majority proceeds to adopt the “wait and see” method purportedly used in Colorado. Not only is this choice an unhappy one from a policy point of view, it also requires a misreading of the Colorado case. Nowhere in Colorado State Council of Carpenters v. District Court of Larrimer County, 155 Colo. 54 , 392 P. 2d 601 (1964) is there any language to indicate that a *524 state court must decline jurisdiction in a particular matter until that precise case has been rejected by the N.L.R.B. All that appears on this issue is a broad statement that “state courts have no jurisdiction to enjoin peaceful picketing in the absence of a showing that the National Labor Relations Board has declined to accept jurisdiction over the controversy.” 155 Colo. at 56 , 392 P. 2d at 601, 602 . Certainly it cannot be said from this language that Colorado has eliminated the possibility of a published rule being used to show a prospective denial of jurisdiction by the board. It appears that the employer did not even attempt to show a prospective denial and, moreover, the statement of facts contained in the opinion reveals nothing upon which such an argument could have been based.
In contrast to the Colorado case, the California case, Russell v. Electrical Workers Local 569, 48 Cal. Reptr. 702, 409 P. 2d 926 (1966), represents a clear holding that state courts need not wait for the board to decline jurisdiction in a particular controversy before hearing the case. In reversing a lower court holding that the employer must always first take his case to the N.L.R.B., Mr. Justice Tobriner, writing for a unanimous court, noted: “To require the parties to submit every case to the board for determination of the jurisdictional question would frustrate the clearly manifested intent of Congress that the board be empowered to delimit the boundaries of its jurisdiction by ‘rule of decision or by published rules.’ We would strip these rules of their legal significance were we to require reference of every case to the board.” 48 Cal. Reptr. at 704, 409 P. 2d at 928 . I can only underscore this sound statement of logic and law by pointing out that the very essence of preliminary injunctive relief is its swiftness. To require an employer to make a completely fruitless and futile claim to the N.L.R.B.— *525 a claim whose fate is already sealed by previous board pronouncements that it will not hear such matters 3 — is tantamount to stripping the preliminary injunction completely of its effectiveness.
It remains now to apply the California rule to the facts before us. In so doing I am convinced that the lower court erred in refusing to reach the merits of the request for preliminary injunction. I appreciate that our power to review the denial of a preliminary injunction is tempered by our own case law which cautions that we leave undisturbed any such decision that is based on “apparently reasonable grounds.” 4 I also realize that, in the area of labor law, the state court must leave to the N.L.R.B. any case that is arguably within the jurisdiction of the board. San Diego Building Trades Council v. Garmon, 359 U.S. 236 , 79 S. Ct. 773 (1959). Nevertheless, a careful review of the record in this matter reveals no such reasonable ground to support the lower court’s conclusions of fact; and a review of the N.L.R.B.’s announced jurisdictional standards unquestionably shows that this matter is not even arguably within its jurisdiction.
The appellants advanced two arguments to support their conclusion that the board would not hear this case. First, it is contended that the Stryjewskis employ only their son and that the National Labor Relations Act itself declares that one is not an employee if *526 be works for his parents. 5 Thus it follows that since the Stryjewskis have no employees, the federal statute does not even apply to them and of course the federal agency will not take jurisdiction. In a footnote tins trial court opinion states however, that the Stryjewskis do in fact have other employees. This is simply not substantiated by the record. Nowhere in the 200 pages of testimony is there the slightest scintilla of evidence that anyone works for the Stryjewskis other than their son. That another son and a brother-in-law have occasionally helped out on weekends for a few hours and for no pay certainly cannot support a finding that the Stryjewskis had employees within the meaning of the act. 6
The second reason advanced for the N.L.R.B.’s lack of jurisdiction is based upon N.L.R.B. Release No. *527 R-576 issued October 2, 1958 in which the board declared that it would assert jurisdiction only over those retail enterprises whose gross volume of business exceeded $500,000 annually. The Stryjewski’s gross volume is only $230,000 per year.
In spite of this conceded fact, the lower court concluded that, for jurisdictional purposes, the Stryjewski’s gross receipts should be added to those of the importing distributors whose drivers would not cross the picket line. This addition process is indeed consistent with board policy, but only when a secondary boycott is involved. See Hattiesburg Building and Trades Council v. Broome, 377 U.S. 126 , 84 S. Ct. 1156 (1964) and cases cited therein. Appellee’s contention notwithstanding, there simply is no secondary boycott present here. Admittedly, on May 15, 1967 a federal-preliminary injunction was issued restraining the union from forcing the importing distributors to cease doing business with several domestic distributors, one of whom was the present appellant. 7 However, not only was this injunction dissolved pursuant to the N.L.R.B.’s letter of May 23, 1967 in which the board declared that none of the picketing was unlawful as secondary, but also the trial record below is devoid of any evidence that there was picketing at the importer’s place of business in the present dispute. It is the nature of a secondary boycott that pressure is put upon one employer to cease trading with another employer with whom the union has its primary dispute. 8 Clearly under these circumstances it is quite reasonable for the N.L.R.B. to look to both employers’ gross receipts for jurisdictional purposes. However, the only picketing complained of by the Stryjewskis occurred at their place *528 of business. If the result of the picketing was a refusal by the importer’s drivers to cross the picket line, thus preventing the Stryjewskis from transacting business with the importing distributors, this alone cannot support the conclusion that a secondary boycott was involved. Since, absent the presence of a secondary boycott, the trial court’s determination of gross receipts was clear error, it should not have declined jurisdiction on that ground.
For all the foregoing reasons, I firmly believe that the lower court should have entertained the preliminary injunction on - its merits — even though at that time the N.L.R.B. had not yet specifically declined' jurisdiction over this particular controversy. Of course I agree with the majority that even under their reading of section 14(c) the case can now be heard below since the N.L.R.B. in fact declined jurisdiction on the day of oral argument before this Court. Nevertheless the rule of law announced by the majority is, I feel, an improper one.
As to that rule I dissent.
Mr. Chief Justice Bell joins in this dissenting opinion.
This phrase appeared first in Senate Report No. 187, April 14, 1959, as reported in 1959-2 U.S. Code Cong. & Ad. News -2318, 2341.
Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. §164 (c) (1) and (2). The act provides in part: “(e)(1) The Board, in its discretion, may, by rule of decision or 6y published rules . . . decline to assert jurisdiction over any labor dispute . . . where, in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction. ... (2) Nothing in this sub-chapter shall be deemed to prevent . . . the courts of any State . . . from assuming and asserting jurisdiction over labor disputes over which the Board declines, pursuant to paragraph (1) of this subsection, to assert jurisdiction.” (Emphasis supplied.)
Although not technically relevant to this discussion of whether the lower court was correct in refusing to assert jurisdiction, it should be noted that on the day of oral argument before this Court, the N.L.R.B. did in fact decline to hear this ease on the ground that the Stryjewskis have no employees. See letter of May 23, 1967 from the N.L.R.B. to Taeony Beer Distributing Company (Stryjewskis), and note 5, infra.
Northampton Area Joint School Authority v. Building and Construction Trades Council, 396 Pa. 565, 571 , 152 A. 2d 688, 691 (1959).
Labor Management Relations Act of 1947, 29 U.S.C., §152 (3) : “The term ‘employee’ . . . shall not include . . . any individual employed by his parent. . . .’’ To the fact that the Stryjewskis have no employees even the majority agrees. Majority opinion, fn. 7.
It could be argued that a lack of employees so robs the N.L.R.B. of jurisdiction that even section 14(c) is not applicable. The language of 14(e) creates a procedure whereby the board may decline to hear cases over which it could take jurisdiction. However, the letter from the board to the Stryjewskis states that “Tacony is not an employer within the meaning of the Act,” and that “[tjherefore, any picketing directed at Tacony by the Respondent, Local 830, or any other labor organization would not be encompassed by Section 8(b)(7)(C) of the Act.” Such language can certainly be read to mean more than a mere refusal to hear a case pursuant to 14(c). It might very well mean that the board could not hear this case even if it wanted to. In such a situation, assuming that a state court can read the definition section of the Act as easily as the board can, there would certainly be no need to wait for the board to say “no” before we can say “yes.”
See, e.g., N.L.R.B. v. A.S. Abell Co., 327 F. 2d 1, 4 (4th Cir. 1964). In construing the National Labor Relations Act, the court noted: “Congress intended the word employee to denote a person who works for another for wages or salary under direct supervision. . . .” In no way can Mrs. Stryjewski’s brother-in-law be said to come within this definition.
The full text of this injunction is set out in the appendix of appellees’ brief at pages 27-29.
National Labor Relations Board v. Denver Bldg. & Const. Trades Council, 341 U.S. 675 , 71 S. Ct. 943 (1951).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9757888. Public record. Not legal advice.