Opposition — Local 9, International Chemical Workers Union v. Eisenberg

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ene Court, U.S,

vi LBD

ee aba s 1981

— — * L. STEVAS, |

CLERK

Iu the Supreme Court of the Unites States

OCTOBER TERM, 1980

LOCAL 9, INTERNATIONAL CHEMICAL WORKERS

UNION, AFL-CIO, PETITIONER

V.

ARTHUR EISENBERG, ETC.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

MEMORANDUM FOR THE RESPONDENT

IN OPPOSITION

LAWRENCE G. WALLACE

Acting Solicitor General

Department of Justice

Washington, D.C. 20580

(202) 633-2217

WILLIAM A, LUBBERS

General Counsel

National Labor Relations Board

Washington, D.C. 20570

|

TABLE OF AUTHORITIES

Cases: Page

J. L. G. M. U., Local 415-475 v. NLRB, 501 F.2d 823.. 3

Local 761, Int’l Union of Electrical, Radio & Ma-

chine Workers v. NLRB, 366 U.S. 667 2

NLRB v. Sears, Roebuck & Co., 421 U.S. 182........

Samoff v. Williamsport Building & Construction

Trades Council, 318 F.Supp. 1105 aff'd, 451 F.2d

— . 5

Sears, Roebuck & Co. v. Carpet, Linoleum, Soft

Tile & Resilient Floor Covering Layers, Local

enen 3

Solien v. Miscellaneous Drivers & Helpers Union,

Local 610, 440 F.2d 124, cert. denied, 403 U.S.

Super Tire Engineering Co. v. McCorkle, 416 US.

—— ³˙A A bea tacdatiataessedends

United States v. W. T. Grant Co., 345 U.S. 629.

Weinstein v. Bradford, 423 U.S. 1477

>> >

Statute:

National Labor Relations Act, 29 U.S.C. 151 et

geg.:

Section 8 (b) (4) (B), 29 U.S.C. 158 (b) (4)

6 — ——— —— 1

Section 10 (0), 29 U.S.C. 160 () ee 2, 3

In the Supreme Court of the United Siates

OCTOBER TERM, 1980

No. 80-2052

LOCAL 9, INTERNATIONAL CHEMICAL WORKERS

UNION, AFL-CIO, PETITIONER

V.

ARTHUR EISENBERG, ETC.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

MEMORANDUM FOR THE RESPONDENT

IN OPPOSITION

1. On April 18, 1980, Ciba-Geigy Corporation filed

a charge with the National Labor Relations Board,

alleging that petitioner was engaging in a secondary

boycott in violation of Section 8 (b) (4) (B) (29 U.S.C.

158 (b) (4) (B)) of the National Labor Relations Act

(A. 14). Respondent, an NLRB Regional Director,

1“A.” refers to the appendix, and “S.A.” to the supple-

mental appendix, filed as part of the briefs in the court

below.

(1)

2

determined that a complaint should issue on the

charges and, pursuant to Section 10(l) (29 U.S.C.

160(l) of the Act, petitioned the United States

District Court for the District of New Jersey for an

injunction against petitioner’s activity (A. 10-13).’

After a hearing held on May 5 and 8, 1980, the

court found reasonable cause to believe petitioner

had violated Section 8 (b) (4) (B) of the Act, and it

enjoined petitioner, inter alia, from picketing at or

in the vicinity of the contractors’ entrance “pending

the final disposition of the matters involved pending

before the National Labor Relations Board” (Pet.

App. 4a). Petitioner filed a notice of appeal from

the district court’s order on July 7, 1980. The appeal

was confined to the issue of the court’s refusal to

fashion its order so as “to permit [petitioner] inspec-

tions or discovery of the type of work being performed

by contractors using the alleged construction gate“

(A. 55).*

2In particular, the complaint alleged that petitioner had

violated the Act by maintaining pickets at the “Contractors’

Entrance” on the premises of Ciba-Geigy, a reserved gate

that was used exclusively by contractors and suppliers

neutral to the primary dispute between petitioner and Ciba-

Geigy. See Local 761, Int’l Union of Electrical, Radio &

Machine Workers v. NLRB, 366 U.S. 667, 681 (1961).

At the Section 10(/) hearing, petitioner informally re-

quested that the judge modify the proposed injunction to

permit petitioner to enter the Ciba-Geigy premises to moni-

tor the neutrality of the contractors’ entrance (S.A. 9-11).

The judge refused petitioner’s request after receiving as-

surances from counsel for the Regional Director that the

Board would continue to furnish petitioner with the names

of all contractors using the reserved entrance (S.A. 14-17,

21-22). Petitioner made no formal motions for discovery

until June 30 and July 7, 1980 (A. 46-54). The district

court took no action with respect to these motions.

3

In the meantime, on May 22, 1980, petitioner and

Ciba-Geigy entered into a settlement agreement in

which petitioner agreed not to picket at or in the

vicinity of the contractors’ entrance and to post for

a 60-day period an official notice stating its intention

to abide by the terms of the agreement (A. 44-45).

The agreement was approved by the Acting Regional

Director. On August 6, 1980, following expiration

of the 60-day notice posting period, the Acting Re-

gional Director informed petitioner and Ciba-Geigy

that the unfair labor practice proceedings were closed

(S.A. 1-2).

On February 23, 1981, the court of appeals dis-

missed petitioner’s appeal as moot (Pet. App. la-2a).

The present petition seeks review of that dismissal

and of the alleged refusal of the district court to

permit discovery.

2. An injunction proceeding under Section 10(l)

of the Act is ancillary to the underlying unfair labor

practice case, and any injunction issued thereunder

expires upon final Board action. Sears, Roebuck &

Co. v. Carpet, Linoleum, Soft Tile & Resilient Floor

Covering Layers, Local Union No. 419, 397 U.S. 655

(1970). The withdrawal by the Regional Director,

on behalf of the General Counsel of the Board, of an

unfair labor practice complaint as part of an in-

formal settlement agreement constitutes final Board

action. See, e. g., I. L. G. W. U., Local 415-475 v. NLRB,

501 F.2d 823, 830-831 (D.C. Cir. 1974). When the

Acting Regional Director withdrew the complaint in

this case on August 6, 1980, the injunction hat had

been issued “pending the final disposition * * * be-

fore the National Labor Relations Board” (Pet. App.

4a) expired both by its own terms and by *

of law.

1

Contrary to petitioner's contention (Pet. 12-13),

this case does not present an issue that is “ capable of

repetition, yet evading review.“ Super Tire Engineer-

ing Co. v. McCorkle, 416 U.S. 115, 122 (1974). The

question presented for review is whether petitioners

may properly be enjoined from picketing at a gate

allegedly reserved for neutral contractors without

being afforded an opportunity to determine, through

either entry on the premises or discovery, that the

gate was not in fact being used by the primary em-

ployer or his suppliers. However, petitioner volun-

tarily entered into an informal settlement agreement

that provided for the Acting Regional Director to

dismiss the complaint and to close the proceedings

upon petitioner’s compliance. If petitioner had made

timely requests for discovery in the district court

(see note 3, supra) and had pursued rather than

settled the case, the dispute would not have been “in

its duration too short to be fully litigated prior to

its cessation or expiration.” Weinstein v. Bradford,

423 U.S. 147, 149 (1975).* Moreover, it is entirely

speculative whether petitioner will have occasion to

engage in picketing under similar circumstances in

the future, and there is no “demonstrated probabil-

ity” or “reasonable expectation that the same com-

plaining party would be subjected to the same action

again” (ibid.).

* Contrary to petitioner’s assertion (Pet. 11, 12), the in-

junction did not terminate in 60 days, but remained in

force pending final disposition of the case. Nor would a vol-

untary cessation of the strike necessarily have rendered this

case moot, as contended by petitioner (Pet. 12). Cf. United

States v. W. T. Grant Co., 345 U.S. 629, 632 (1953); Solien

v. Miscellaneous Drivers & Helpers Union, Local 610, 440

F.2d 124, 127 (8th Cir.), cert. denied, 408 U.S. 905 (1971).

5

3. With regard to the issue of discovery in district

court injunction proceedings (Pet. 13-16), it is clear

that discovery under the Federal Rules of Civil Pro-

cedures is available to all parties in Section 10(l)

actions.“ See, e. g., Samoff v. Williamsport Building &

Construction Trades Council, 313 F. Supp. 1105

(M.D. Pa. 1970), aff'd, 451 F.2d 272 (3d Cir.

1971). Since petitioner made no formal discovery

motions until after the Section 10 (“) hearing had

been completed, and since the case was ultimately

settled, the district court had no occasion to rule on

petitioner’s motions for discovery.

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

LAWRENCE G. WALLACE

Acting Solicitor General

WILLIAM A. LUBBERS

General Counsel

National Labor Relations Board

August 1981

s It is immaterial here whether discovery is available in

proceedings before the Board. The petition seeks review

not of any Board proceeding but of the proceeding in the

district court.

W ov. 6. GoveRNmenT Printing orrice, 1961 351454 570