Brief in Opposition to Petition for A Writ of Certiorari — Los Angeles Herald-Examiner v. Ralph E. Kennedy
Supreme Court brief1970
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_ LIBRARY. eee:
ee COURT, U.S. IN THE ee.
Supreme Court of the wind So)
; Octaber Term Term, 1970
No. 350°
LOS ANGELES HERALD-EXAMINER, Division of The Hearst
ration, and THE SAN FRANCISCO EXAMINER, Division of
3 Us.. j
RALPH E. KENNEDY, Regional Director of Region 21 of the. National
Labor Relations Board, for and on Lehalf of the NATIONAL LABOR
RELATIONS BOARD, in proceedings before the United States
Court of Appeals for the Ninth Circuit, Respondent
F ‘SAN FRANCISCO-OAKLAND NEWSPAPER GUILD; NEWS-
ee: PAPER AND PERIODICAL DRIVERS’ AND HELPERS’ UNION
LOCAL 921; LOS ANGELES NEWSPAPER GUILD, AL @;
LOS ANGELES WEB PRESSMEN’S UNION NO. 18; LOS AN-
GELES STEREOTYPERS’ UNION NO:, 58; LOS ANGELES
TYPOGRAPHICAL. UNION NO. 174; INTERNATIONAL ASSO-
CIATION OF MACHINISTS AND’ AEROSPACE WORKERS
DISTRICT LODGE NO. 94; GENERAL WAREHOUSEMEN z
UNION LOCAL 598; BUILDING SERVICE AND MAINTENANCE
EMPLOYEES UNION NO. 399; LOS ANGELES MAILERS -
Woo NO. 9; and LOS ANGELES PAPER HANDLERS’ UNION .
ie NEah Gee or before g United States pee of Appeals
a
ciel in. Opposition: to Petition for a, Writ of Cesthécus
$* Se ee
: Circuit.
SrerHen Retin HARor,
; 3540 Wilshire Boulevard,
~ Los Angeles, Calif: 90005, 4
: Attorney for Respondents.
Of Counsel : .
Bonrz, Focer, Jutzer and Remnant, ; :
_ Gerorce E. Boorz,
Das Py
G. Osrrov, °
emote Bauwoace, Nernst, Mur, Ross & Reicu,
Los Angeles, Calf. 50005. : . ee,
Parker & Son, lnc, Law Printer, Loe Angles Phone 685-9790
> +
, e .
.
“~
L.
4. There Is No Conflict Among the Courts of
ae Appeal on the Questions Presented ......:.....
SUBJECT INDEX.
: Tee Petition I Does Not Present Important or
Substantial Questions Which Should Be Con-
sidered by This Court and This Is Not~an
Appropriate Case for Consideration of the
| pee ae CRANES AE Eat RO
The Orders of the Court of Appeals Dismiss-
ing ‘Petitioners’ Appeal and. Denying Peti-
tioners Leave to Intervene in Respondent
Regional Director’s Appeal of the District
Court’s Order Dissolving tiie Temporary In-
junctions Issued Under Section 10(1) of the
Act Are Not in Confli¢t With This Court’s
Décision in Intl. Union, United Automobile,
Aerospace & Agricultural Implement Workers
of America, Logal 283 v. Scofield, 382 US.
BOS (19GS) -22.nnnccnsevinorccomreneiingreroneeceivecennepnens
The Order of the’ Court Below: Is Consistent
With the Letter and Spirit of Section 10(1)
and With the Intent of:Congress in the Nor-
ris-LaGuardia Act and the National Labor
Relations Act, arid Permits Charging Parties
Conclusion ....... Keaceeieaiigesseliniaes Sc ssuceiclsnideliehaninneneen
pte Page
Quéstions. Presented -......;./.-..2:0.c-coseps0e action ci ome ie
Statute LE PTTL AES 3
tatoos OF tie Ca0 anon acc cen pcaceocescere, orm Mane 4
- Reasons for Denying the Petition sins ieee
. to Participate in the Section 10(1) Proceed-
ing to the Full Extent Intended by Congress
IE LET ELIE IE ES OIE Fine ON soestere er j ~ “4 :
t
Le TABBE OF AUTHORIT IES CITED.
i SS Cipes. : ce Past
‘Amalgamated Clothing Workers v. Richman Bros... &
348 U.S. 452 (1955). CENCE SAEED NU BY tA 18.
Amazon Cotton Mill, 167 F. 2d 183° (4th Cir.
. 1948) mie ei tae PREECE DU ahd et APRESS 7 Se IRE AE AY : “See
‘ Bakery Sales Drivers Local Union. No. ao %. Wag- Saber ge
shal, 333 U.S. 437 (1948) ............... ES Ses . a |
General Committee v. Missouri K.T.R. ©o, 300
US. 323 NER PNGPN Sovgemiegeasipiens Big RE Reg gens Do 19
_ Henderson v. IUOE, Local 701, 420 F. 2d 802. as dee
ee a ee ie eee
Intl. Union, United. Automobile, Aerospace & heli
cultural Implement Workers of America, Local. -
283 v. Scofield, 382 U.S. 205 (1965) ......8, 11, 12
pcebnigiheasiaaiuainaslieeiunateianteay ...14, 15, 16, 17, 20, 23
biel cod v. General Electric ‘Co., 366 F. 2d 847°
(2d. Cir., 1966) SRE RG hile AIR) MCR REE 23a
‘NLRB v. Nashville Bldg. & Const: Trades Council, ?
383 F. 2d 562 (6th Cir., 1967) iia, oat asecmurct nue’ 2D
_ San Francisco-Oakland Newspaper Guil@y et al. -v. 9
Kennedy,, 412 F. 2d 541 (9th Cir., 1969) .....2..... a ~~
San Francisco-Oakland "Newspaper Guild, et al. v.
Kennedy, Docket Nos. 22757-8-9 (9th Cir., ‘May
20, 1968), cert. denied, 393 U.S. 926 (1968) ..... 22
Sears, Roebuck & Co. v. Local 419, Carpet — °
410<§. 2d 1148 (10th Cir, 1969), _2..... US. ©
ees , 98S. Ct. 1299 (1970) ...... m a
| aie gain | Page
Nusiound Labor Relations Act, ‘Sec: 8(b) (4) (i) Gi)- |
7°" ME < smaptenwecte RRS SNE OPIN OC AMIR nd Pe Be 4
National Labor Relations Act, ‘i. RRR NS AES) i
National Labor Relations Act, Sec. 10(b) : Rice oe 20 :
National Labor Relations Act, Sec. 10(e)... 8, Ag ie A
ee een Tk Se |
National Labor Relations Act, Sec. 10(f)....8, 11, 12,
* 52] | eelieODlicce eceeewiacten ceca tap tabidbastes abe acces ae 16, 17, 20
National Labor Relations Act, Sec. 10(h) ...........-. on 19 .,
National Labor Relations Act, Sec. 10(j) reset oe) eee
National’ Labor Relations Act; Sec.. 10(1) .. 2 pe eae
8, 9, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21,22, 23
19
Norris-LaGuardia Act, Sec. 10 neilessnnseysnthonstboihinenshn
- United States Code, Title 29, :Sec. 101 seuiteticbousecine 18
United States Code, Title 29, Sec. 158(B)(4) (DG +
UID soteocincsncetachesiccepensbbhendenentivabansieeorbiiternndet aes
United States Code, Title 29, Sec. 160(b) . Ghee ia 20
_ United States Code, ‘Title 29, Sec. 160(e) ene ae
United Statés Code, Title 29, Sec. 160(f) ~ aren 14
3 United States Code, Title 29, Sec. ne) .*
Supreme Court of the United States
’ October Teta. i970
No. 350 ~
LOS ANGELES HERALD- EXAMINER, Division of The Hearst Corpo-
ration, and THE SAN FRANCISCO EXAMINER, Division of The
Hearst a
Petitioners,
vs.
RALPH E, KENNEDY, Resiosal ‘Direchix pf Region’21 of the National 4
Labor Relations Board, for and on bthalf of the NATIONAL LABOR
RELATIONS BOARD, appellant in prgpentings before the United States
- Court of Appeals for the Ninth Circuit,
ee - Respondent,
SAN _FRANCISCO- OAKLAND NEWSPAPER GUILD; NEWS-
- ‘PAPER AND PERIODICAL DRIVERS’ AND.HELPERS’. UNION
LOCAL 921; LOS ANGELES NEWSPAPER ILD, LOCAL 6; -
LOS ANGELES ‘WEB PRESSMEN’S UNION NO. 18; LOS AN-
GELES STEREOTYPERS’ UNION NO. ‘LOS ‘ANGELES
TYPOGRAPHICAL UNION. NO. 174; INTERNATIONAL ASSO-
-CIATION OF MACHINISTS AND AEROSPACE WORKERS,
DISTRICT LODGE NO. 94: GENERAL WAREHOUSEMEN’S
UNION LOCAL 598; BUILDING SERVICE AND MAINTENANCE.
UNION NO. 9; and LOS ANGELES PAPER NDLERS’ UNION
eh 3, appellees in proceedings before the United States Court of Appeals
inth Circuit,”
y - ee
Brief in Opposition to Petition for a Writ of Certiorari
.to the United States Court of Appeals for the Ninth
Circuit. E "s ; ;
EMPLOYEES UNION NO. 399; LOS HANDLE MAILERS
.
Respondents, San Francisco-Oakland Newspaper ae
Guild, Newspaper and Periodical Drivers’ and Helpers’ |
Union Local 921, Los Angeles Newspaper Guild, Local
69, Los Angeles Web Pressmen’s Union No. 18, Los
Angeles Stereotyper’ s Union No. 58, Los Angeles Typo-
graphical Union No. 174, International Association of
Machinists and — Workers, District ‘Lodge
| ee:
mee, Ye
No. 94, General Wasehousemen’s Union Local 598, ea
Building Service’ ‘and Maintenance Employees Union
No. 399, Los Angeles Mailers’ Union~No. 9, and Los
Angelesr Pager Handlers’ Union No. 3, Korcinatter’ re-
ferred to_as “Respondent Ufifons”, pray that ‘the petir °
tion for a writ of certiorari to. review the Orders of the .
. United States Court of Appeals: for the Ninth Circuit
dismissing petitioners’ appeal and* denying petitioners
‘motion to intervene, be denied.
| ” Questions Poctuaied.
x Does a cheb party in ‘proceedings instituted
by the National Labor Relations Board pursuant to Sec-
tion 10(1) of the’ National Labor RelationsZAct, as
amended, 29 US.C., section 160(1), have standing to
‘appeal from a decision of the district court: ‘where the —
National Labor Relations Board has appealed from that
decision and is prosecuting the appeal?
- 2. Does a charging party, in proceedings instituted
by the National Labor Relations Board pursuant to
Section 10(1) of the National. Labor ‘Relations Act,
as amended, 29 US.C., Section 160(1), have an abso-
lute right to intervene as a party in an appeal from
the decision of the district court. filed by the National
Labor Relations Board where the charging party’s posi-~
“tion on the appeal is being prosecuted by the National
| Labor Relations Board and where the charging party “8
has been afforded the ‘opportunity to appear as an
amicus curiae, to file a brief, and to argue orally?
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_ Statute ailieniod-< ae
” Secticn 10( 1) of the National Labor Relations Act, as
amended, 29 U.S.C., Section 160(1) “provides in rele- x
“e,
- vant part: wagers eae PEs
j Whenever it is charged that any’ person has en-
" gaged in\gn unfair labor practice within’ the mean- .
‘ing of paragraph (4)(A), (B), or (C) of section
8(b) or section 8(e) or section 8(b)(7), the: pre-
liminary - investigation of such .charge - shall be
made forthwith and given priority over all. other
cases except cases of like character in the office
where it is filed or to which it is, referred. If, after
such investigation, the officer or regional attorney
. to-whom the matter may be referred has reason-
able cause fo believe such charge is true and that —
a complaint should issue, he shall, on ‘behalf of
the Board, petition any dktrict court of the United
States . . . for appropriate injunctive relief pend-
ing” tte tinaY” sdjedication of the Board with re-
spect to such mattef. Upon the filing of any such .
petition the district court shall have jurisdiction to
grant such injunctive: relief or temporary restraini-
| ing order as it deems just and proper, notwith-
_ Standing any other Provision ‘of law. : .. Upon
1 Os filing of any -petition ‘the court: shall causé notice
? thereof to be served upon any person involved in -
the chargé and such person, including the soneg ?
ing party, shall-be. given an opportunity to ‘appear
by counsel and present: any: relevant testimony.
Ss t
" Statement ofthe Dien:
On January -12, 1968, respondent Ralph E. ee
nedy, Regional, Director of Region 2i of the National
Labor Relations Board; hereinafter referra to as “Re-
sponglent Regional Director”, filed a, petition for ingunc- 7
tion. under Section 10(1) of the National Labor Rela-
tions Act (29 U.S.C., Section 160(1)), in the United :
‘States, District Court, Northern District of California, al-. |
leging that; petitioners herein had filed unfair Yabor
practice charges with the -National Labor Rélations
Board,’ charging that respondent unions were. engaging
in activity in violation of Section. 8(b)(4)(i)(ii)(B) of |
the Act (29 US.C., Section 158(b)(4)(i)(ii)(B)), further -
alleging that.respondent Regional Director had reason-
able cause to believe that respondent unions had en-.—
gaged in the unfair Jabor practices charged, and re-
. questing a temporary injunction pending final disposi-
tion by,the Board o of said unfair labor practice charges. _
The district. court issued: an order on February 7, =
1968 sik a: a supplemental order on’ February 8, 1968, -
granting the temporary. auacton requested by respond: 4
ent. Regional Director. : i
~ Respondent unions appealed | to the Court of howbiihs
for the Ninth Circuit, seeking a reversal of the judg-
ment of the district court. Petitioners, charging parties
below, filed a- motion for leave to intervené in the
) proceedings. On May 20; 1968, the Court of Appeals.
denied petitioners leave to: intervene but permitted them
to appear and file a brief as amici curige. Petitioners
é‘ od | . .
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. . . the Court of Appeals and on*June 4, f69, the Court »
' to dismiss petitioners’ appeal, which- motion was. based -
a
- . petitioned this Court for a writ of certiorari on the
' denial of their motion to intervene, but-certiorari was~
denied. 393 US. 926 (1968). Petitioners participated |
as amici curiae in the. proceeding on the merits before .
of Appeals affirmed the decision of the district. court. ©
is _. San Francisco-Oakland Newspaper ‘Guild, et al. v. ‘st gf
Kennedy, 412 F. 2d 541 (9th Cir., 1969). :
On Febuary 20, 1970; respondent unions moved
the district court to dissolve the temporary ‘injunctions
granted on February 7 and: 8, 1968, on the grounds. :
that said temporary injurtctions, had been in effect for
se
‘oa
more than a reasonable ‘period of time and that it was
“no “longer just and .proper to maintain. them in effect. - pee sa
On April 6, 1970, after consideration of affidavits,
‘fiemoranda of: points and authorities, and oral argue .
ment, the district court dissolved said temporary injunc-
| tions, concluding that they had been in effect for more.
-. than a reasonable period. of time and that it.was no | 4
— just: and proper to maintain them in Yebfict. = fp
_ That same day, Respondent Regional Director and pe-..
- titioners filed separate notices. of appeals and requests , 7
for sthys of the district’ court’s order. On April 14,”
‘1970, the Court of. Appeals granted the petitioners’ mo- ©
tion for’ a ‘stay of. the: district court’s order wae
appeal. On May. 19, 1970, however,’on nr ON
the Court of . Appeals: vacated its order o Y spril 14
1970, granted Respondent Regional Direstor’s motion
af
pene aoa
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Dee Wee saase eer ae ) ,
; . . / , Sear ° or oe ¢ ‘ 7 As é
on petitioners” lack of painaisine’ toa , and me |
: Respondent Regional Director's motion. % a stay of the’
_ district court’s order peiding determination of: Respond-
ent Regional Director’ appeal (Cause No. a 656). .
_--Follewing the dismissal of their appeal, petitionérs.
_ sought: leave to intervene ¢ on. Respondent Regional: Di-
rector’S appeal (Cause No. 259656). On’ June 15, 1970,
the Court of Appeals denied leave to intervene. On. .
» * June 26, 1970, the Court of Appeals granted peti-
oe tioners. amici curiae status, as well iis the right to file
a brief. and -to ‘share in the argument. time of. Re-
“ ‘spondent Regional Director. Briefs on the merits of |
i PAse the appeal ere filed by Respondent’ Regional] me:
rector: ‘adpdlend, respondent ‘unions (appellees), and
| petitioners (amici curiae). Oral argument on the merits
(was held. ont July 8, 1970. Petitioners Participated in -
‘the oral argument, sharing equally with Respondent Re-:
gional Director the’ time alloted to the. appellant for
Pee argument: During oral argument, petitioners, for the
| first time; raised the argument that respondent unionge
could” have availed themselves of _an-alleged alternative’
remedy, i.e., writ of mandamus against the Board; peti- J
_tioners had not raised this issue in the’ district court nor
-. in thetr brief to the Court of Appeais. The appeal has -
. ‘been taken under submission by the Court: of dit ae
, REASONS FOR DENYING, THE PETITION. -
1, .The Petition Does Not Present Important ‘oF Sub-
‘stantial Questions Which Should Be Considered by
This Court and This Is Not an ‘Appropriate Case, at
for Consideration of the Issues Raised.
‘The petition presents two questions. relating. to the
-, _ Tights: of charging parties to -particjpate in - appellate .
i ‘proceedings “arising out of Section 10(1) proceedings. in-
. ‘stituted by the National Labor Relations: Board. The -
rs questions raise narrow, peripheral, insignificant issues
~ unrelated: to the substantive provisions of Sectior 1.0( 1).
_- Moreover the insignificance of the questions ‘presented
f becomes even more apparent when’ we consider the pau-
-> city of Section 10( 1) san _— reach the courts of
"hs. . ~ appeals. ee
Sauer ae, A review of volithes 398 to’ 412, inclusive, of the .-;
Federal Reporter, 2d series, encompassing roughly: a
twelve month period from ‘approximately July 1, 1968 .
to. June 30, 1969, discloses only ‘three court of appeals.
decisions .in Section: 10(1) cases ahd none in Section
— 10(j) cases, Similarly, a.review of volumes 380 to 397,¢ |
oi Nigh eee inclusive, of the Federal Reporter, 2d. series, encom- |
= ‘ passing roughly“a twelve month period from approxi-
7 mately July .1, 1967 to: June 30, 1968, discloses only
one court of appeals decision in a: Section 10(1) case.
_ and two in Section 10(j) cases,
| The small number of Sections {0( 1) and 10( j) ¢ cases |
whiclé reach the courts of appeals is, of- course, a di-
.fect result of the nature-of these proceedings. Under. .
Section 10(1) the National Labor Relations Board is au- ,
ms "thorized to séek preliminary injunctive relief against cer-
; tain specified types of. unfair labor practices pending a: --
decision by. thie Board on the merits of the charges, ~
5
Section’ 10(j) isan analogous provision authorizing pre-
‘ liminary ~ injunctive telief in other cases* where it is
necessary. Preliminary relief under Section. ‘10G) or :
100) iS sought by the Board, in .only a. sniall ‘ percent-
age of its cases. Sincé the relief is pendejite. lite, ‘only’
.- a few of” these Section 1Q(1). or 10(j). cases ever reagh-. .
_. . the courts of appeal, and eyen. fewer are decided by ype
courts of appeals. : ee
\ Sneed tee ” : ‘ ne
It becomes even “more ‘agigiltent that there is only ‘a
- dé minimus number of Séction: 10(1) appeal ‘cases de-.’.
cided by ‘thé. courts of ‘appeals when we,_contrast -the-/—
number of Section: 10(1) appeal. -eases ‘(three in one |
7 year and one in. another) with the three undred and ie
i under Sec- a
. tions 10(e) “and (f). of the Act deci d by courts of
° appeal during fiscal “years. S. as “re rted ff the
one enforcement and/ or .review proceedings
Thirty-Third Annual Report Sof, the ‘National Labor
- Relations Board, Appenie A, Tables 19. and 19A, PP.
. — deh ae | :
- Thus, eacesiingly few Sections 10( 1) or 10( i) appeals
rn
ita
5
__ ete decided by the courts of appeals, and, quite ob- *.
viously, the question of. intervention or standing of a
*
"*Sections 10(e) angel f) ordvide for sllebedent and /or review
of all final decisions of she Board. The proceedings arise after a
. full hearing and. decisig) on. the. merits by the Beard; the courts + ~
- gf appeals’ decisions are, of course, final decisions on: the merits. - -
ourts of Appeal consider Tasge numbers of such casés each
-, year. In Inil. Union, United Automobile, Aerospace & Asgri-
cultural Implement. Workers of America, Local 283 v. Scofield,
382 U.S. 205 (1965), relied on by petitioners herein, this Court. |
idered the rights of quccessful charged and charging parties
to intervene in.Sections 10(e) and (f) proceedings. The questions -
considered the Scofield; unlike the questions -presented here, in-
. volved. the right to participate in review and enforcement pro-
ceedings on the merits, after having participated as a party in
the Board procegding on the merits, and involved Sections 10(e) -
and (f) proceedings which are ‘bafore courts of — on a fre- :
quent and regular basis.
; de « =A
ean?
; , ayers o . eee ® ote . gras ve wee cere ns Onion tag as Re eRe Omen
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. fa | Sree aA
: ee eer _:. charging party is involved even. bois festiaeath Some’.
: . * charging parties undoubtedly: do not participate - at all.
‘ ss and others are not concerned with. becoming full parties..
_ Despite ‘the exceedingly. small number of Section on
‘s 10(1) cases decided by the . courts of ‘appeals, this 5
~~... Court recently granted certiorari in Sears,. Roebuck & ~
- €o..¥. Local 419, Carpet. Layers, ....1:.. ' 8. Seer , 90S.
.@t. 1299 (1970), -a Section 10()): case in. which the a
a a standing of - “a charging party to appeal was raised.”
Petitioners argue that thie issue raised i in Sears, Roebuck» a Eee
is ‘identical: to the first question presented herein—.
_ whether: charging parties have standing to appeal from
_a district court decision -in a Section: 10(1). proceeding.” sk
_ The. issue Taised in Sears, Roebuck, however, went far ite:
-. beyond the limited questions presented here, for Sears, ~~.
- - Roebuck, unlike the instant case, involved ‘an attempt - >
- ‘by an interested: person to appeal: and: ‘to pursue litiga-
a) ign, when ‘the, government agency charged with re-_
. ° sponsibilj y in the matter-had refused to act. Quite Ob-. |
. viously, ‘thé issue in Sears, Roebuck had ramifications
“Beyond Section 101), and: beyond the National Labor
Relations Act, and involved a question of the right of: a
'” ~ private party to take action which is normally within
the province of a federal agency, wheh the federal |
“agency has-chosen not to take dction, — te eae
In Sears, Roebuck, the National Labor. Relations’
“ ‘Board. had chosen. not to appeal from an adverse de- .
“cision of the district ‘court and the ‘charging party had
attempted to do what. the Board’ would ‘not. ¢ The court .
of appeals dismissed’ the appeal -filéd by the charging:
* party, leaving no appeal of the adverse district court de- ~~
'. \ ~ cision..”. The. court: of appeals’ ‘dismissal of the charging
.party’s appeal in Sears, Roebuck. terminated all litiga- —
eek “ae
ae tet Te -
aie
. tion in the injunction. proceeding; and left the charg-
\ng party without a temporary injunction, without a
. forum to question the correctn€% of the district court's
decision; without an opportunity to present its position
‘or to have its position presented to a court of ap-
peals, and without a court of appeals decision on the
merits.
In the instant case, ‘the National Labor Relations
, Board has appealed from the decision of the district
. court, has fully prosecuted that appeal, and has fully —
protected the interests of the charging parties: Indeed,
on thé same day that the charging parties filed a no-
tice of appeal and a request for a stay of the district
“- court order, the Board also filed a notice of appeal and
a request for a stay, The Board obtained the stay,
’ filed a brief on the merits and argued orally before the.
» gourt of appeals; the appeal has been taken under sub-
mission and. there is absolutely no indication that the
Board is even considering. dropping the appeal.-On
the contrary, the Board has vigorously prosecuted the
appeal at all stages, and fully represented the charg-
ing parties’ interests. Moreover, the charging parties
have fully participated in the appeal, have filed.a brief
on the merits, have argued orally, and have been af-.
forded the opportunity to present any argument they
_ chose to raise. The ,dismissa! of the charging parties’
appeal by the Ninth Circuit herein, unlike the dismissal
of the charging party’s appeal by the Tenth Cir-
cuit in Sears, Roebuck, will have no impact whatso-
ever on the court's decision on the merits, and - no ef-
‘ fect whatsoever on the presentation of charging par- -
ties’ position. .
Assuming, arguendo, that the question snennaial in
_, Sears, ae was a substantial or important question
~ “Vu
\e
ow { j—
ee |
in the context of that case, ris clear that .the =:
tion of the standing of petitioners Kerein to appeal js in-,
significant’ and academic. Under these circumstances,
respondent unions respectfully submit that the ques-
tion of the standing of charging parties in the instant
case to appeal from the, decision of the district court
is not sufficiently important fof consideration by this
- Court, and that this is not an ee case for
consideration of: the issue, raised.
The second question presented by the petitioners
raises the issue of a charging party’s right to intervene
in an appeal of a district court decision under Section
ay
10(1) of the Act. This Court, of course, previously de- _
nied certiorari to these same petitioners on the identical
issue when they sought to intervene in an earlier ap-
‘ peal to the Ninth Circuit in the instant Section((10( ¥
proceeding. 393 U.S. 926 (1968).
. Petitioners. again argue here, as they did in 1968,
that the decision’ of the Ninth Circuit denying em eave
“intervene is in conflict with this Court’s de¢fsion in
Intl. Union,’ United Automobile, A ereospace & Agri-
cultural Implement Workers of America, Local 283
v. Scofield, 382 U.S: 205 (1965). As we shall. demon-
te, infra, the. decision of the Ninth Circuit in no
way conflicts with this Court's decision in Scofield, ne
t
is the ‘appropriate’ and correct decision under the sta
tory framework of Section 10(1) of the Act. As will be
' discussed infra, Scofield involved questions of partici-
‘pation and rights of charging and charged parties in en-
‘ forcement and review proceedings under Section 10(e)
and (f) of the Act following a full hearing and final
‘ decision by the Board on the merits of the case. The
questions raised in Scofield involved an entirely differ-
: a |
ént statutory scheme from that involved herein, with en-
tirely different practical and legal considerations, and
an ‘entirely different’ legislative intent’ and totally dif- _
ferent policy considerations. .
Scofield involved substantial and important ques-
tions, but the questions raised here, while falling within
the same broad area of charging parties’ rights, arise in
the context of temporary, interim injunctive relief under
Section 10(1) of the Act and are insignificant in the
framework of federal labor policy. The question of a
charging party's right to intervene in a Section 10(1) ap-
_ peal is particularly insignifigant where, as here, the
charging party has been afforded amicus curiae status,
has filed a brief on the merits With the court of appeals,
and has argued orally.’
As we have’ demonstrated above, courts of appeals
decide a substantial number of Section 10(e) and (f)
proceedings—the type of .proceedings involved .in Sco-
_ field—each . year. During fiscal 1968, three hundred
and one such.:cases where decided by the courts of ap-
peals. Section 10(1) cases, however, are decided only
infrequently by the courts of appeal. Only four such
cases appear in the Federal Reporter volumes covering
roughly a two year period from July 1, 1967 to June ©
30, 1969. . |
Petitioners, in attempting to overcome the lack of im-
‘portance of the questions they have presented, argue
that there are issties they might present which the Board
would. not or could not present. In particular, peti-.
tioners ‘point ‘to an argument regarding an alleged al-
ternative remedy which respondent unions could haye
utilized, i.e., writ of mandamus against the Board. Pe-
titioners’ contentions here with respect to that argu-
i eee
* —BS
ment are, however, highly misleading. Petitioners did not
raise that argument themselves in the district court, al-
though they fully participated in the district court pro-
ceedings, nor in their brief on the merits to the court
of appeals. Petitioners first raised-the issue in oral argu- °
ment to the courts of appeals. In any event, they were
permitted to present their arguments on this issue at that
time. SO Sea 2 93
Furthermore, this is not an appropriate case for con-
sideration of the question presentéd since the identical
- question of these charging parties’ right to intervene
was finally determined against ‘the petitioners two
years ago, and certiorari was denied on this issue. 393
U.S. 926 (1968). The law of. this case on the’ ques-_
tion presented has, therefore, been préviously. decided
finally against petitioners and they cannot now raise
the question again in this case,
Petitioners’ earlier motion to intervene was denied
by the Ninth Circuit in an earlier appeal in the instant: -
case. That first appeal involved the same parties and
the same temporary.injunctions as are involved’ in the
current appeal. The issue in the first appeal was whether
the, temporary injunctions against respondent unions
had been properly granted and should remain in effect’
the issue in the current appeal is whether those same :
temporary injunctions should still be maintained in
effect two years later: The interests of the respective.
parties in the first appeal were identical to their respec-
tive interests in the current appeal; in both appeals
petitioners and’ Respondent Regional Director sought
to maintain the temporary injunctions in effect and
respondent unions sought to terminate: said injunctions.
. The question of petitioners’ right to intervene before the
‘demas
Court of Appeals in this case was finally determined,
> against-them two years ago in the first appeal. Thus, the
> instant petition constitutes merely one further attempt .
to intervene on the same grounds in the same case, even -
- though that. issue has previously been weed resolved:
against petitioners.
Clearly the questions presented here, are relatively
insignificant questions, having | little or no importance in
the spectrum of. federal labor policy. Respondent unions ~
respectfully ‘submit that this petition does not present
substantial or important questions worthy of considera-
tion by this Court and that, in any event, this case is
not‘an-appropriate one for consideration of the issues —
raised. - ee
2. . The Orders of the Court of Appeals Dismissing ©
Petitioners’ Appeal and Denying Petitioners Leave
to Intervene in Respondent Regional Director's _—--—,
Appeal, of the District-Court’s Order Dissolving the
~~Temporary Injunctions Issued Under Section 10(1) |
of the Act Are Not in Conflict With This Court’s
Decision in Intl. Union, United Automobile, Aero-
space & Agricultural Implement Workers of Amer-
ica, Local 283 v. Scofield, 382 U.S. 205 (1965).
. In Scofield, this Court held ‘that charging parties
and eharged partiés in unfair labor practice proceed-
ings before the National. Labor Relations Board have a
. right to intervene in the court of appeals in proceed-
ings reviewing an NLRB order under Section 10(e) and
(f) of the National Labor Relations Act (29 U.S.C.,
Section 160(e) and (f)). Petitioners contend that the
- Ninth Circuit’s order in this proceeding denying them
the right to intervene in an appeal of an order issued
' _ by the ‘district court under Section 10(1) of the National
cs
Labor Relations Act is in conflict with this Court’s
decision in Scofield, and attempt to analogize proceed-
ings under Section 10(1) to proceedings under Section
10(e) and (f). It is clear, however, that this Court’s
decision. in Scofield i is inapplicable to ‘the questions
_ presented here.
In Scofield; this Court was covet to ccalties the
scope of its rukmg to the question: of intervention in the .
courts, of appeals in NLRB review proggedings under
Section 10(e) and (f).
, - “Lacking a clear directive on the subject, we look
‘to the statutory design of .the Act. Cf. Scripps-
Howard Radio v. Commission, 316 U.S. 4, 11, 62:
S. Ct. 875, 86 L.Ed. 1229. Of course, in consid-
_ ering the propriety of intervention in the courts of -
appeals, our discussion is limited to Labor Board
Teview proceedings. Pcderal agencies are not fun-
gibles f@rintervention purposes—Congress has
treated the matter with attention to the particular —
statutory scheme’ and agency. .-.. .” (382 U.S. at
210). (Emphasis“dded).
In Scofield, this Court relied heavily upon the statu- x
tory scheme of Section 10(e) and (f), a statutory scheme
wholly different from that fontained in Section 10(1).
In particular, this Court relied upon the fact that the
charging party is a full party in the Board proceedings
which are being reviewed and that Section 10(f), un-
like Section 10(1); provides that “any person aggrieved
by a final otder of the Board . . . May obtain review
of such order. an
Moreover, the rationale of this Court in ‘Scofield i in
allowing intervention in review proceedings is wholly
< . a,
inapplicable to proceedings under Section 10(1) ofttte
Act. .As this Court pointed out, any party aggrieved
- by a Board order may seek review of that: ler and if
a successful. charging party or ch party is not
allowed to intervene in‘the first“appellate review pro-
ceeding, there is a possibili y of a remand to the Board _
followed by a ruling against ‘the previously successful
‘party with the attendant possibi ity of a second appeal
to the court of- appeals by the party which was not
_permitted to intervene in the original ‘appellate review
_ proceeding. Thus,: denying intervention to a success- *
-ful charging party or charged, party in the first appel-::
late:teview proceeding may lead to undesirable duplica-
tion: of proceedings. and “circuit shopping”. 382 USS.
at 212- 213, _222,-fn. 20. 4
It is clear that the ‘Considerations which -warrant in-
tervention in enforcement . and _ review proctedings: _
under Section 10(e) and (f): do not exist in proceedings.
under Section 10(1). Under Section 10(1) there is no
possibility of duplication of proceedings which might
‘result from the denial of intervention. If the charging
‘parties are not permitted to intervene in the proceed-
ings in a Section 10(1) appeal, and if there is a re-
mand: to the district court with a subsequent. ruling’ in
‘favor of appellants, charging parties -will not have the --
opportunity to review this ruling in a subsequent ap-
peal, as would be the case under Section 10(e) . and
(f).. The problem considered by this Court in Scofield
was that charged parties and charging parties who were
not allowed to iritervene in the first appellate“ proceed-
ing might subsequently have a right to bring an appeal ‘
themselves as agerieved persons. This problem simply
does. not exist under Section 10(1).
2
dy
Sas
* “with respect to intervention in’ review and e
—17—
4
-In short, the ‘question of interverttion in 1 proceedings’:
~ on a Section 10(¢1) appeal is an entirely different ques- ~ . |
rcement
proceedings under Section 10(e) and (f). Thus, |the order |
of the Court of Appeals denying intervention in the in-
tion from that considered by tkis Court Se
_ stant, proceeding is not in conflict with this:Court’s de-, ..
cision in Scofield.
Moreover, as we ‘shall demonstrate infra, ‘there are a
number of compelling policy: reasons for denying charg-
ing parties status as full: parties in Section 10( 1) pro-
ceedings. It is clggr that in Section '10(1), unlike Sec-.
tion 10(e) and (f), Congress intended to limit. and re- °
‘Strict the ret of margin ais ‘and did in fact do
SO. . :
3: Fhe Order of the Court Below Is Cihatatoni ‘With:
the Letter and Spirit of Section 10(1) and With the
Intent of Congress in ‘thet Norris-LaGuardia Act
and the National Labor Relations Act, and Permits
Charging Parties to Participate in the Section 10(1) °
Proceeding to the Full Extent Intended wale Con-
gress.
Congress, in. enacting ate 10(1) of the Act, pro-
yided for interim injunctive relief with respect to cer-
tain kinds of. unfair labor practices. Congress sought to
protect the public interest, but also carefully spelled out
the rights of the private parties involvéd in the labor
dispute. Cognizant of the odious history of- the ex -
‘parte labor injunction and’of the fact that private liti-
” gants involved in a labor dispute could not be~éxpectéed
to afford one another just treatment in an injunction
proceeding, and yet mindful of the importance of time,
“Congress provided for an expedited*procedure but limi-
~ ory
—- +
ted the length,of time a temporary restraining. order
could remain er and gave to the National Labor
Relations Board thXauthority to institute and prosecute
_the’ proceedings, while spelling out in detail the rights
eC baivase parties to ensure that the interests of respond-
ents, as well as. charging parties, are fully protected. ,
An a. careful balancing ‘of interests, . Congres speci-
fically limited the rights of the charging party. It was
2%. fs clearly the intent of Congress to preciude p
i parties from seeking or obtaining injunctive relief ot
7 Section -10(1). Nor did Congress. intend that private ‘par-
ties should be permitted to intervene or to appeal and -
seek an injunction. from a_hjgher court . which they
could ,not .have sought or obtained from the lower _
court. Rather, Congress chose to: protect the ‘public in-
terest, while at the same time’ protecting ‘the interests,of
| ‘erespondent and charging party, by providing han:
ing party with certain specific rights, i.e., the — ight to
- appear and present relevant. testimony. |
re: In Sections 10(j) and 10(1) of. the Act, Congress :
enacted a narrow exception to the prohibitions of the |
Norris- ‘LaGuardia Act (29 U.S.C.,. Section 101, et
seq. ys against temporary injunctive relief in labor dis-
putes. It is well settled that this narrow exception,
‘removing the limitations of the Norris-LaGuardia Act -
- upon the. power to issue labor injunctions, was’ ap-
plicable only where the administrative’ agency entrusted
with /the enforcenient of the Act, the.;National Labor
_, . Relations Board, seeks the injunction, not where it is
sought by a private party. Bakety Sales Drivers Local .
"Union No. 33 v. Wagshal, 333 U.S. 437 (1948);
Amalgamated Clothing Workers v. Richman Bros., 348
US. 452, ST pitied :
: —19—
Petitioners argue that Section 10(h) -of the Act ex-.
cepts all proceedings: under Section 10 from the pro- .. .
_ visions of the Nortis-LaGuardia Act. It is clear,-how- ~
_ ever, that in Section [0 of the National Labor Relations _
Act Congress _ carved out certain express exceptions to °
_- the provisions of Norris-LaGuardia, and that Congress.
intended to create no other exceptions than those. speci- .
fically set forth in Section 10(1). “As the Fourth. Cir- °
cuit said in Amazon Cotton Mill, 167 F. 2d 183.
_ (4th Gir., 1948), quoting the language of this Court in’
General Committee y. Missouri K.T.R. Co., 320 USS. ea
323, 332 (1943), and applying it to the National Labor ae
~ *Relations Act:
| ; On only certain phases of this controversial sub-
whi ject has “Congress utilized administrative or ju-
’ dicial machinéry and invoked the compulsions of .
the law. Congress was déaling with a- subject
highly: charged with emotion. Its approach has_
‘not only been slow; it has been piecemeal. Con- —
gress has been highly selective in. its’ use: of legal
machinery. The delicacy of these problems has
made it hesitant to go tod fast or too far. The
inference is ‘strong that Congress intended to go no
_ further in its use of the processes of adjudication
and litigation than the express provisions. of the
Act indicate. ” (157 F. 2d at 186).
The rights: of parties to ‘participate in various " pro- |
ceedings are.spelled out in. detail-in Section 10 of the
Act, and Congress clearly chose to set forth wholly dif-
ferent procedural rules under Section 10(1)from those ,’
established with respect to proceedings before the Board
+ ‘and. subsequent review. or enforcement procéedings. ~
Section 10(1) provides that the charging party shall be -
Qo ‘ > i :
= z
\, NS
*. given an oppertunity to appear by counsel and preseat ©
| any relevant testimony in ‘the proceedings. for a tem-
“. porary injunction. It does not provide that the charg- °
ing party may intervene in such proceedings or that he
may: become a party to the proceedings. In Section 10- ,
(b), 29 U.S.C., Section’. 160(b), however,-’ Congress
specifically provided, for intervention in the Board pro-
ceeding on the merits. And, as thi# Court pointed out
‘in Scofield, supra, the charging party is accorded form-’
‘al recognition in-the Board proceeding; he participates
"in the hearing as a “party” and he may file exceptions
to. any order of the trial examiner. :
Similarly, Section r0(1), unlike Section 10(f), ‘does
not provide that any person aggrieved by a decision
- can seek revjew. ;
It was not by accident that Congress ‘provided for
- varying degrees of participation on the part of ‘charging
. parties. The feview proceedings contemplated under
Section 10(e) and. ¢f) of the Act follow a full hearing
on the merits’ before the Board: with all parties. pat-
ticipating. In a. Section ‘10(e)_ and (f) proceeding the
findings of- the’ Board must be supported by substan- °
tigl:‘evidence on the record considered as a whole. Sec-
fon 10(1) provides for interim relief,.a temporary re-
straining order and/or a preliminary injunction after
_ a preliminary. investigation by the Board. but prior to -
any’ hearing. on ‘the merits. The’ petitioning Regional
' Director under Section. 10(1) must show only that there
°
is reasonable cause to believe ae, a violation of the
Act has occurred.
“The limitation on participation of charging: parties.
in preliminary’ Section. 10(1) proceedings, prior to a
Board decision on the merits, is also necessary because
*
S :
/ —21—
. «
~
of the importance of time when: a prelimiriary labor in- -
-_juriction is at issue. Obviously, the injunction is of crit-
ical importance in a labor dispute, and once an injune-
spondent. As we have demonstrated, supra, Congress
was. fully aware that time was; déften of critical im-
portance. to all parties, and ‘therefore provided for an
: Respondents’ interests in speedy resolutien of the case -
"were further protected by limiting the parties to the
Board and respondent, -and by: not affording the charg-
ing party full status as a party. Tf an injunction issucs,
. and respondent chooses to appeal, he is, of course, in-
terested in obtaining a decision on appeal as quickly as
possible, since time is usually of the essence.’ Public |
\ policy also favors a quick decision, for if the injunc-
tion was granted erroneously, . it should be removed as
quickly as possible in light of its ‘critical importance: in
_tion has been issued time is of the essence. to the re-—
expedited procedure and also limited the period of time _
a temporary restraining order could remain in effect.
a
the labor dispute. The Regional Director, acting’ in ‘the
public interest, would undoubtedly present no unrea-
sonable roadblock to a quick decision. The charging
party, however, is in no hurry to obtain a decision
once there is-an injunction in effect. If the, charging
party were a full party, it might well be able to dictate
and control the. _course of: litigation, not in the public
might well be deprived of the opportunity to have their
tical difference. ’
* ‘
Congress intended to limit thse rights of. charging
parties to Participate’ in. Section 10(1) proceedings,
\ .
‘ % g
interest, and not in accordance with Congressional “i: in-.
tent, but solely: in ‘its .own interest, and respondents
- appeal heard ‘at a time when it. ‘still made some prac- _
Q
?
— 2
and did in fact do so. Congress has precluded private
parties from seeking or obtaining temporary injunctive
relief under Section 10(1). It was not the intent of
Congress to. allow a private ‘litigant to appeal and
seck an injunction from a higher court whith only the
Board could seck below, or to permit a charging
party to intervene and become a full party avith the
power to dictate the course of Btigaton fi in Section 10(1)
proceedings.
The decisions of the Ninth Circuit dismissing peti-
tioners’ appeal and denying petitioners the right to
intervene in this proceeding properly limit the partici-
pation Bf private litigants in Section 10(1) proceedings
to the extent intended and expressly uimua for by
Congress in Section 10(1). % ;
4. Thess tro Coaliict Amona the Courts &t Aguéal
on the Questions Presented.
The Court of Appeals for the Ninth Circuit has’
considered the question of a charging party’s rights on —
appeal of a district court decision under Section. 10(1)
on two occasions prior to the instant decisions, and on
both occasions the Ninth Circuit concluded that a
charging party does have the right to participate as a
full party to such . San Francisco-Oakland
tp naa Guild, ei al. v. Samedy, Docket Nos. 22757-
8-9 (9th Cir., May 20, 1968), cert..denied, 393 US.
926 (1968); Menderson v. IUOE, Local 701, 420 F.
2d 802 (9th Cir., 1969). The Court of Appeals for .
‘the Tenth Circuit is in accord. Sears, Roebuck & Co. v.
Local 419, Carpet Layers, 410 F. 2d 1148 (10th Cir.,
1969), dismissed for mootness, ..... US. ....4)90 S. Ct.
1299 (1970). :
7 |
—3— , a
Althouglf amicus curiae argues that thé decisions of
the Second Circuit in ‘Mcleod v tienenit Electric Co.,
366 F. 2d 847 (2d Cir., 1966), and of the Sixth Cir-
cuit.in NLRB vy. Nashville Bldg. & Construction Trades
Council, 383 F. 2d 562 (6th Cir., 1967), indicate an
approach to the question different from that of the
Ninth and Tenth Circuits, it is clear that neither the
P nd Circuit or Sixth Circuit has ruled upon or evi»
rcunet the right of a charging party to intervene, and
that there is no decision by & court of appeals i in conflict
with the decisions of the Ninth and Tenth circuits.
In McLeod v. General Electric Co. 366 F. 24 €@)
(2d Cir., 1966), there is neither a holding nor a discus-
sion by the Second Circuit on the issue of ‘intervention
by the charging parties. Charging parties’ intervention
in that case was not opposed and the issue was neither
raised nor considered. Moreover, the charging party was
not in fact treated as an intervenor since the court
granted it only the right to file a bricf while denying
leave to argue orally.
In NLRB y. Nashville’ Bldg. & Const. Trades Coun-
cil, 383 F. 2d 562 (6th Cir., 1967), the Sixth Circuit
had before it three legM@ proceedings: an appeal of a
temporary injunction granted by the district court un-
der Section M@(1), a petition for writ of mandamus
filed’ by the respondent union, and a petition for en-
forcement of the final NLRB order on the merits. The
court noted at page 563, footnote 1, that the petition
of the charging party to intervene “in the enforcement
proceedings” was granted, citing UAW v. Scofield,
supra, but the charging’ party did not intervene in the ~
of the injunction issued under Section 10(1) —
even though that proceeding was also before the court.
po.
Thus, there is no conflict among the courts of appeal. -
The Ninth and Tenth Circuits are in accord that a
charging party does not have standing ta appeal or the
right) to intervene; there is no contrary court of ap-
peal’ decision and no court of appeal_has expressed a |
view in conflict with that of the Ninth and Tenth
Circuits. '
*. Conclusion.
- For the foregoing teasons, it is respectfully urged
that the petition for writ of certiorari should be denied.
P A ; 4
Respectfully submitted,
STEPHEN REINHARDT,
Attorney for Respondent Unions.
Of Counsel:
BoDLe, FOGEL, JULBER anid
REINHARDT, _—
Georce E. Bopte,
DANIEL Foce., *
Lester G. Ostrov,
» BRUNDAGE, NEYHART, MILLER,
Ross & REICH,
ROSENTHAL & LerFr,
- ANSELL & ANSELL,
. BRUNDAGE, NEYHART, GRODIN &
BEESON,
GEFFNeR & SATZMAN. . . ‘ /
—
*
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