Brief in Opposition to Petition for Writ of Certiorari — Los Angeles Herald Examiner v. San Francisco-Oakland Newspaper Guild

,

SUBJECT INDEX

Question Presented

Statute Involved —.

Statement of the Case

Reasons for Denying the Petition -..:

Conclusion ,

19

7

TABLE OF’ AUTHORITIES CITED ©

<a eats snes aRnnineeeememmmpeniaieinemmstn “| Satins liat bet

Cases ' Page

Amalgamated Clothing Workers v. Richman Bros.,

FS US. Be nn eiestieninlcstvadiasedasaadameaans

Amazon Cotten Mill Co. v.. Textile Workers Union,

167 F. 2d 183 sida keusatecdeaeheomameievasaiesedaduanieda eiaiad

Bakery Sales Drivers Local Union No. 33 v. Wag-

OME, SEB US. SOF secnvsalicrcssosernsnninopsenmsivcmnbassstssctanni

General Committee v. sake K.T.R. Co., 320

5 Se _ FORMCUPR Ros oktant Yan egos aS eINENNYE Rene RATE

International Union, United Automobile, Aerospace

and Agricultural Implement Workers of America,

Local 283 v. Scofield, 382 U.S. 205 ~....00.............

PRCA SRR OE CN Hie Ne TET are & oS

McLeod v. Business Machine and Office Appliance

Mechanics Conference Board, 300 F. 2d 237 ......

. McLeod v. General Electric Co., 366 F. 2d 847 ....

NLRB v. Nashville Building & Construction Trades

* Fe Ws Ge Ee cencsnveeciascsiiicteeniemiaiadeae ,

Walker v. City of Birmingham{ 388 U.S. 307 ........

Miscellaneous ©

_ Thirtieth Annual Report of the National Labor Re-

lations Board (1906); p. 360

Thirtieth Annual ‘Report of the National“Labor Re-

lations Board (1966), p. 146 ..........---.-.-.--- edi

Statutes

National Labor Relations Act, Sec. 8(b)(4)(i) (ii)-

to oncent sSevanavenepecesennlnesenesnesnsengessesemvencsscesonsnsennense

National Labor Relations -Act, Sec. 10 ...........22... 11,

National Labor Relations Act, Sec. 10(b) ..............-.

10.

ll

17

16

16

17

13

ar

18

18

-s hicoids ee ee ee ee pee ey eee te Ae eS ed

“

National — Relations Act, Sec. 10(e)

innate tatilet is Rtad. witueerns aaa 5, 6, 8, 9, 13, 14

National Labor Relations Act, Sec: 10(f) ..............-.

hseesesdecaameesiedpdiacnaid dumiemeaniauntaamadianeds 5, 6, 8, 9, 12, 13, 14

_ National Labor Relations Act, Sec:10(h)’ ....--...---- 11

: National Labor Relations Act, Sec. 10(j) .. simmriamn Te?

National Labor Relations Act, Sec. 10(1) .............. .

saiisiticlasaasiial 2, 3, 5, 6, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18

United States Code, Title 29, Sec. 101, et: seq. ...... 9

United States Code, Title 2, Sec. 158(b) (O-

(ii) (B) aiid 4

United States Code, Title 29, - 160(1) . gua a 3

United States Code, Title 29, ae 5

United States Code, Title 29, Sec. 160(f) -............... 5

a

he RR tI Ce OE BO AAs At OE eer SO Ru) no

IN THE

Supreme Court of of the United States

- October Tern Term, 1968

No. 409 |

, LOS ANGELES HERALD EXAMINER, a Division of the Hearst

Corporation and THE SAN. . FRANCISCO EXAMINER, a Division

of the Hearst Corporation,

Petitioners,

‘ US.

SAN FRANCISCO-OAKLAND NEWSPAPER GUILD; NEWS-

PAPER AND PERIODICAL DRIVERS’ AND HELPERS’ UNION

LOCAL 921; LOS ANGELES NEWSPAPER GUILD, LOCAL 69; ‘

LOS ANGELES WEB PRESSMEN’S UNION NO. 18; LOS AN- j

GELES STEREOTYPERS’ UNION NO. 58; LOS ANGELES ‘

TYPOGRAPHICAL UNION NO. 174; INTERNATIONAL AS- j

SOCIATION OF gh ty AND "AEROSPACE WORKERS,

DISTRICT LODGE NO. 94; GENERAL WAREHOUSEMEN’S

UNION LOCAL. 598; BUILDING SERVICE AND MAINTE- ..

NANCE EMPLOYEES UNION NO. 399; LOS ANGELES MAIL-

ERS’ UNION NO. 9; and LOS ANGELES PAPER HANDLERS’

UNION NO. 3, appellants in sroceedings before the United States :

Court of Appeals for the N iat ircuit,

Respondents, :

RALPH E. KENNEDY, Regional Director of Region 21 of the Na- :

tional Labor Relations "Board, for and on behalf of the NATIONAL ‘

LABOR RELATIONS BOARD, appellee in proceedings before - the

é United States Court of Appeals for the Ninth Circuit,

' Respondent.

Brief in Opposition to Petition for a Writ of Cer-

tiorari to the United States _—— of Appeals for

the Ninth Circuit.

Respondents, San Francisco-Oakland Newspaper .

' Guild, Newspaper and Periodical Drivers’ and Helpers’

Union Local 921, Los Angeles Newspaper Guild, Lo-

cal 69, Los Angeles Web Pressmen’s Union No. 18,

Los Angeles Stereotypers’ Union No. 58, Los Angeles

Typographical Union No. 174; International Association

of Machirlists and’ Aerospace Workers, District Lodge

No. 94, General Warehousemen’s. Union Loca] 598,

a Se

‘Building Service and Maintenance Employees Union |

~ No. 399, Los Angeles Mailers’ Union No. 9, and Los

_-Angeles Paper Handlers’ Union No. 3, hereinafter re-

ferred‘to as “Respondent Unions”, pray that the pe-

tition for a writ of certiorari to review the order af

the United States Court of Appeals for the Ninth

Circuit, entered in the above- entitled case on May 20,

1968, denying petitioners. leave to intervene, be denied.

Question Presented.

Where a district‘ court, in proceedings instituted by

the National Labor Relations Board pursuant to § 10°

(1) of the National Labor Relations Act, as amended,

29 U'S.C. § 160 (1), issues a temporary injunction

against a charged party and the charged party appeals

therefrom, does the charging party have a, right to in-'

tervene in the appeal proceedings ? -.

Statute Involved.

Section 10. (1) of the National Labor Relations Act,

as amended, 29 U.S.C. § 160 (1), peeves in relevant !

part: ' ’ =

“Whenever it is charged that any person has en-

gaged in an unfair labor practice within the. mean-

ing of paragraph (4) (A), (B), or (C) of sec-

tion 8 (b) or section 8 (e) or sectiong8 (b) (7),

the preliminary investigation of such gbharge shall

be made forthwith and given priority over all

other cases except cases of like. character in the

a

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

reasonable cause to believe such charge is true and .*

‘that a | complaint should issue, he shall, on behalf

aii tatidiatha: hatpln Di Daai arta ti bh ins ica Nh Oa cat ALAR ci Heir ANA tn I A Rein BARE LE LN ESE Soi tes Bila Sesto ida

‘.of the Board, petition any district court of the

United States (including the District Court of the

_ United States for the District of Columbia) with-

in -any district where the ‘unfair labor practice in

question has occurred, is alleged to have occurred, - ;

or wherein such person resides or transacts busi-

ness, for appropriate injunctive relief pending the -

final adjudication of the Board with respect tO»

_ such matter. Upon the filing of: any such pétition

the district court shall have jurisdiction to grant ©

such injunctive Yelief or temporary restraining or-

der as it deems just and proper, notwithstanding

any other provision of law: prov’ ‘ed, further,

That no temporary restraining order shall be issued

without notice unless a ‘petition alleges that sub-

stantial and.irreparable injury to the charging par-

ty wilt be unavoidable and such temporary restrain-

ing order shall be effective for no longer than five

days and will become void at the expiration. of

_ such period. . . . Upon filing of any such petition

_ the court: shall sanibi notice thereof to be served

upon any person involved in the charge and. such |

person, including the charging party, shall be giv-

en-an ‘opportunity to. appear by ee and present

any relevant testimony. knows -

; Statement of the Case. |

On January 12, 1968 respondent Ralph E. Kennedy,

Regional Director of Region 21 of the National Labor

Relations’ Board, hereinafter referred to as. “Respond-

-.ent Regional Director”, filed a petition for injunc- ,

tion under § 10 (1) of the’ National Labor Relations

_, Act (29° U.S.C. § 160 (1)), in the United States Dis-:

trict Court, Northern District of California, alleging -

that petitioners herein had filed unfair labor practice —

charges with the National Labor Relations Board, charg-

ing that respondent unions were’ engaging’ in activity

in violation of § 8 (b) (4) (i) Gi (B}> of the Act

(29 USC. § 158 (b) (4) (i) (ii) (B)), and further

alleging that respondent Regional Director had ‘reason-

able cause to believe that respondent unions had*-en-

al ee sla SABE N Cte pa nhl Sia DAL Ne Bale Cesta than VD Ni Rts eh ah GIT RL MEAS aS 0 WS

REALL inci i mean | a iss

gaged in the unfair labor practices charged. Following’...

the filing of affidavits, the submission of- memoranda:

of points and authorities by petitioners, respondent

unions, and respondent Regional Director, and oral ar-

gument, the District Court, on February 7, 1968, issued

an order granting the temporary injunction requested by

‘respondent Regional Director, and on February 8, 1968,

issued a supplemental order granting the temporary in-

junction requested by respondent Regional ‘Director.

Respondent -unions appealed to the Court’ of Appeals

for the Ninth Circuit, seeking a reversal of the judg-

ment of the district court. Petitioners, charging par-

ties below, on April 17, 1968 filed a motion for leave to

intervene in the proceedings. By an order dated April

19, 1968, the Ccurt of Appeals granted petitioners leave

to intervene in the appeal as appellees. On April 24,

1968, respondent unions and respondent Regional Di-

rector ftled answers to petitioners’ motion for leave to

‘intervene and requests for reconsideration by the Court

of Appeals of its order granting intervention. Petition-

ers were permitted to, and did, file a brief in opposition

to the motions for reconsideration of the order, granting

* intervention. On May 20,,-1968, the Court of: Appeals —

' rescinded its order of April 19, 1968 so faréas’ that

order permitted intervention by petitioners, but deerned

said order as an authorization for charging parties -to

- appear and file a brief‘as amici curiae. :

e

a

Reasons for Denying the Petition. —

1. The order. of the Court of Appeals. denying pe- a

titioners leave to intervene in. the appeal of the Dis-

trict \Court’s order granting a temporary injunction pur-

“suant to § 10 (1) of the Act is-not in. conflict with |

this Court’s decision in International Union, United

Automobile, Aerospace and -A gricultural I mplement

Workers of America, Local 283: v. St ita 382 U. S.

205 (1965).

' In Scofield, this Court held that isiciiys parties and

charged parties in unfair labor practice proceedings be-

fore the National Labor Relations Board have a right

to intervene in the court of appeals in proceedings

reviewing an NLRB order under § 10 (e) and (f) of °

the National Labor Relations Act (29 U.S.C. § 160

(e) and (f)). Petitioners contend that the Ninth Cir-

_ cuit’s order in this proceeding denying them the right

to intérvene in an appeal of an order issued by the ra

District Court under § 10 (1) of the National Labor

Relations Act is in conflict with this Court’s decision

in Scofield, and attempt to analogize proceedings under

§ 10 (1) ‘to proceedings under § 10 (e) and (f), This’

Court, however, in Scofield, was careful to confine

the scope of its ruling to the question of intervention

in the courts of appeals in NLRB review proceedings

under § 10 (e) and (f). | )

“Lacking a clear directive on the subject, we

look to the statutory design of the Act. Cf. § cripps-

Howard Radio v. Commission, -316 U.S. 4, 11,

62 S. Ct. 875, 86 L. Ed. 1229, Of* course, in. con-

_sidering the propriety of intervention in the courts -

of appeals, our discussion is‘limited.to Labor Board

review proceedings. Federal agencies are not fun-

i,

a te

- "7

PO OIE EG SEIEP SE EF

" .

i i ie

' gibles fr . intervention sideiienin cine has

treated the matter with attention to the particular

statutory schéme and agency... .” a _ - at .

210). .

In Scofield this Court relied re upon the statu-

tory scheme of § 10 (e) and (f), a statutory scheme

wholly different from that contained in § 10 4), and

upon the fact that § 10 (f), unlike § 10 (1); provides

that “any person aggrieved by a-final order of the“

Board . . . may obtain a review of such order. ra

Thus, this Court said: '

“In some instances, the words of the statute.

themselves elicit an answer. When the Bodrd en- ‘

- -ters a final order against the charged party, it is

clear that the® phrase ‘[a]ny person aggrieved’ in

_ § 10. (f) enables him to seek immediate review in

an appropriate Court of. Appeals. Alternatively, if

the Board determines that a complaint should be

* dismissed, the charging patty has: a statutory right

.to review as a ‘person ee ” (382 U.S. at

210).

Moreover; the fationale of this Court in S cofield. in

allowing intervention in review proceedings is wholly

. inapplicable to proceedings. under § 10 (1).0f the

Act. As this Court pointed out, any party aggrieved

ky a Board order may seek review of that order ‘and

if a successful charging party or charged party is not

- allowed to intervene in the first appellate. review pro-

‘ceeding, there is a possibility of a remand to the Board

followed by a ruling against the previously successful

party with the attendant possibility of a second appeal

to the Court of Appeals by the party who was not per-

ye

a — ts

= : oe

“=

{mitted to intervene in the cniginal appellate review pro- -

ceeding. Thus, -denying intervention to a successful.

charging party or charged party in the first appellate

" ereview proceeding may lead to ‘undesirable fai tion

- of proceedings and “circuit _ shopping”. ‘"s

rd o allow intervention to the charged party in

the first appellate review: proceeding is to avoid S

_ ‘unnecessary duplication , of proceedings,’ and to

adhere to the goal of obtaining ‘a just result with

a minimum of technical requirements.’ Analysis

of the Act’s. machinery in practice so indicates. A

decision of the reviewing court to set aside a

Board order dismissing a complaint has the effect

- of returning the case to the Board for further

proceedings. This normally results in the Board’s

entering an order against the charged party. From

this remedial order, as “noted, the charged party is

aggrieved and maiy seek review. Judicial time and

energy is then expended in pursuit of issues al-

ready resolved’in thé first appeal. Moreover, the

second appeal ceyld lead to undesirable ‘circtiit

shopping’ and tseless proliferation of judicial ef-

fort. . : Permitting intervention in the first re-

‘view tee centralizes the controversy~“And limits it

to a single decision, accelerating final resolution.

This is in accord with ‘one of the objectives of the

“Labor Act—the prompt determination of labor

disputes.” |

International Union, United Auto Workers v.

Scofield, 382 U.S. 205, 212-213.

And, hae this Court noted:

. In the. second review proceeding” if the

veined charging party is denied interven-

g.:

~ tion and the appellate court. takes a different view

of. the applicable law, the charging party might

later have. the opportunity to seek review again as

a ‘person aggrieved’. Thus, , thyee or. seven more re-

view proceedings could be engendered out of the

failure to. permit intervention. at the most conve-

rfient stage—the initial review proceeding. ”

(382 U.S. ‘at 213, fn 6). aes

“Tt is clear that the asinbiireilite, Which warrant in-

" tervention in review proceedings under § 10 (e) and

(f) do not exist in proceedittgs under § 10 (1). Under

§ 10 (1) there is no possibility of duplication of pro-

ceedings which might result from the denial of inter-

- vention. If the charging parties are not permitted to.

intervene in the proceedings in a § 10 (1) ‘appeal, and

a | there is a remand to the District Court with a sub-

sequent rulifig in favor of’ appellants, charging parties

will not have the oppoftunity to review this ruling in

a subsequent appeal, as would be the case under § 10

-(e) and (f). The problem considered ‘by this Court in

Scofield was that charged parties and charging parties

who were not allowed to intervene in the first appellate

proceeding might subsequently be wble to seek review

themselves and thus relitigate the case. Under § 10

(1) a charging party who is not allowed to intervene

could never subsequently have a right to bring an appeal . -

’ himself and thus the case would not, and could not, be.

_ relitigated in a second appeal based on the same issues.

In short, the question of intervention in proceedings

on a § 10 (1) appeal is an entirely different question

from that considered by this Court in: Scofield with °

rei to intervention in review and enforcement pro-

&

| : ae |

ceedings under § 10 (e). and (£). Thus, the order of

the Court of Appeals denying intervention in the in- _

stant proceeding is not: in conflict with, this ‘Court's s

decision in $ cofteld. ae

2. The order of the court below is consistent: with. . —

the letter and spirit of § 10 (1) -and with the intent

of Congress in-the Norris-LaGuardia Act andthe Na- ,

tional Labor Relations Act, and permits charging par-

ties to participate in the § 10 (1) proceeding to the fult

extent intended by Congress. |

In §§ 10 (j) and 10 (1). of the Act, Congress en-

acted a narrow exception to the prohibitions of . the.

'. Norris-LaGuardia Act (29 U.S.C. § 101, et 5eq.),,

against temporary injunctive relief’ in labor disputes.

This narrow exception was applicable only to’ proceed=

ings by the administrative: agéncy ‘entristed with the

enforcement of the Act; ‘the National. Labor Relations

Board.’ | | aoe oe

As the Fourth Circuit pointed out prior to the pas- _

sage of the Taft-Hartley amendments to the National |

Labor Relations Act:

“Prior to the passage of the Norris- LaGuardia

Actof March 23, 1932, 47 Stat. 70,29 U.S.CA. -_

§101, et seq., the use of injunctions in labor dis-

putes had been the subject of much bitter contro-

versy; and the purpose and effect of that Jegisla-

tion was to deprive the federal courts of jurisdic-

tion to interfere by injunction with labor disputes °

except ‘in a very limited class of cases. The juris-

- diction ofthe court over labor disputes was still

further limited by the National Labor“Relations

~. Act of July 5, 1935, 49 Stat. 449, 29 U.S.C&A.

Sethi ntti acini he KEE ia teh ee “

Ps §151 et seq., which guaranteed the right of col-

lective bargaining to employees engaged in industry

affecting interstate commerce, defined unfair labor.

- practices on the part of employers and-set up the

‘National Labor Relations Board to supervise col-

lective: bargaining ca tee employees in the ex-

ercise of rights guarafiteed by the Act-from unfair

labor practices on the part of ‘theif “employers.

-It is perfectly clear, both from the history of the |

National Labor Relations Act and from the de-

cisions rendered thereunder, that the purpose of --

that, Act, was ‘to establish a single paramount ad-

ministrative or quasi-judicial authority. in connec-

tion with .the development of federal- American

_ law regarding collective bargaining’ ; that the only:

rights made, enforceable by the Act were those de-

termined by the National Labor Relations Board’. - |

to exist, under the facts of éach case; and the ©

federal trial courts, were without jurisdiction ‘to. -

redress by injunction or otherwise the unfair -labor :

practices which it defined.” ;

Amazon Cotton Mill Co. v, Textile Workers

Union, 167 F: 2d 183, 186 (4th Cir. 1948).

‘In Bakery Sales Drivers Loéal Union No. 33 v.

Wagshal, 333 U.S. 437 (1948), this Court held that

the Labor Management Relations Act of 1947 had re-

moved. the - limitations of the Norris-LaGuardia Act -

-upon the power to issue injunctions against’ what are -

known as secondary boycotts, “only where an injunc-

tion is sought by the National. Labor Relations Board,

not where. proceedings arg instituted by a private par-

ty. (333 U.S. at 442).

Ga.

ss

Bh kU eee al A

—1 ao:

- As this Court said in Amalgamated Clothing W orkirs:

v. Richman Bros., 348 U.S. 452, 517 (1955):

“Congress explicitly gave such “jurisdiction [to

issue injunctions against unfair labor’ practices

pending final adjudication ‘by the Board] to the

district courts only.on beltalf of the Board on a

petition by it or: ‘the officer or regional satan

to.whom the matter might be’ referred’. . . To-

* hold that the TaftsHartley Act also suthorlecs a

private litigant to secure interim relief: would be .

to ignore the ‘closely circumscribed jurisdiction giv- .

en tothe District Court and to generalize where

_ Congress has chosen to specify.”

_ Petitioners argue that: § 10 (h) of the Act excepts

all proceedings under § 10 from the’ le provisions: of the —

Norris-LaGuardia Act, and. attempt tc to analogize the

_ order of the Court of Appeals i in- enforcement proceed- -

° ings with the temporary injunctive «relief envisaged un-

der § 10 (1). It is clear, however, that in § 10 of the

. National Labor - Relations Act. Congress carved | out

certain express exceptions to the provisions. of - Norris-.

LaGuardia. As-the Fourth Circuit ‘said, in Amazon

=e otton Mill, supra, quoting with approval the language .

of this Court in General Committee v. Missouri K. 7 iB

~Co.,-320 U.S. 323, 332 (1943), and: applying: it to the

Natioiial Labor Relations Act: :

“On only certain phases ‘of this coubioveesit

- subject has Congress “utilized administrative. or

judicial machinery and invoked the compulsions of -

the law. Congress was dealing with a subject high-

ly charged with emotion. Its approach has not

only been slow; it has been: piecerpéal. Congress

has been highly, selective, in its use of legal ma-

deni Tiga Tg te eA GiB iE pats iE ate Bait SS Ditto steel SAK a Ge LL DRLS ALE ied ER CEM 8 eB

—12— ar Ee x

chinery. The delicacy of these froblere, bias? rae it

hesitant to go too fast or too far. The inference.

<a strong that “Congress intended to go no further

in its use of the processes of adjudication and liti-

gation than the express provisions: of the Act in-

dicate.” (167 F. 2d at 186). -

” Oeiey.: the statutory scheme: of § 10 (i) sets forth

~ wholly, dif ferent procedural rules from those _estab-

lished with respect to proceedings before the Board and -

subsequent review or’ enforcement proceedings. Section

10 (1) provides that the charging party shall be given es

an opportunity to appear by counsel ‘and present any

~ relevant: testimony in the proceedings for a temporary

injunction. ‘It does: not provide that. the charging party

may intervene in such proceedings or that he’ may be> —

come .a party to the proceedings. Nor does it provide

that the charging party, or any other person aggrieved

_ by an order of the district court, may seek review, of

that order. Section 10 (£ ), however, provides that any —

person aggrieved by a final order of the Board may -

seek review in a Court of Appeal. Moreover, as this °

Court pointed out in Scofield, the charging party in

the ‘Board ‘proceeding is accorded formal tecognition ;

he participates in the hearing as a “party” and he may. —

_ file exceptions to: any order _of the trial examiner. If

Congress had intended that charging parties should have

the right to intervene in § 10.(1) proceedings or in.

§ 10 (1) appeals, it could have so prov ided. With re-

spect to proceedings. before the Board, Congress pro-

vided in § 10 {b), “In the discretion of the member,

agent, or agency conducting the hearing or the Board,

any other person may be allowed to intervene in the

‘said proceeding_and to present testimony.” ‘With re-

—— ¥

.

" spect to review 1 proceédings, as we tiave seen, Congress

. provided that any person aggrieved might seek. review.

It was not by ‘accident that Congress provided fot.

varying degrees. of participation on the’ part of charging |

parties in proceedings under § 10 of the Act. Although

petitioners attempt. to analogize the temporary injunc- -»

~ tion envisaged under § 10 (1) with the injunction is-

sued by a court of appeals. in enforcement proceedings,

the injunctions are in fact wholly different and there

are compelling reasons for- ~providing for different de--

grees of participation by private litigants, The injunc-

tion contemplated under § 10. ( e) of the Act follows a

full hearing on the merits before the Board with all-

parties participating. In a § 10 (e) and (f£). proceed-

‘ ing the findings of. the Board must be supported by

" substantial evidence on the tecord considered as’a whole. -

Section 10 (1) provides for interim relief, a temporary

restraining order and/or a preliminary injunction after

a preliminary investigation by the Board but prior to

any hearing on the merits. The petitioning Regional »

Diréctor under § 10 (1) must, show only that there is

reasonable cause. to believe that a Yiolation ‘of the Act

has occurred.

As Chief Justice ‘Wiries said in a dissenting opin-.

ion, joined by Justice Brennan and Justice Fortas, in

Walker v. City of. ani trai 388 U.S. 307, 330

“to 331 (1967); °° °°

’ “The ex parte tetnporary . —os "has a long

and odious history in this country, and its suscep-

tibility to misuse is all too apparent. are

weapon against strikes, it. proved so ‘btettie in

the hands. of judges friendly to employers that

Congress was forced to. take the drastic step of

te

\

removing from ‘federal Sinketit courts the. jurisdic

- , tion td issue injunctions’ in labor disputes. The la- .

te bor injunction fe fell: into disrepute largely because

it was abused. . |

‘Congress was: fully aware: of ‘the “odious. history”

of the temporary injunction when it enacted § 10 (i)...

Thus, in providing. for a temporary injunction with —

respect to certain alleged unfair labor practices prior

to any hearing ‘on ‘the merits, Congress earefully re--

stricted the conditions upon which an ex parte tem-

porary restraining order. could be issued: and also ex-

‘pressly limited the rights of private litigants in. fe

proceeding.

The “odious wen” surrounding the eine | in- .

junction granted prior toa hearing on the merits does

not exist with respect: to the type of injunction con-

templated by § 10 (e), we, a Permanent injunction

after full adjudication and full hearing | on the merits

of the dispute. Accordingly, - the procedures and the . = :

rights of private parties under § 10 (1) are vastly -

“different from those- under § 10-(e) and (f). :

To allow the charging ' ‘party: to intervene in a pro-

- ceeding under § 10 (1) and become a full party in

such a proceeding violates both 'the letter and the spitit .

of § 10 (1) and the intent of Congress in the Norris-

La Guardia Act and: the National “ ‘Labor. Relations —

Act. Congress has sought to preclude private parties

from obtaining temporary injunctive relief in labor dis-

putes and has entrusted orly the Board with the au- -

thority to.secure such interim relief where the Board

has reasonable cause: to believe that an unfair labor

. practice has occurred,

Se Me be toe yt

The right: to intervene and become a full party in

- these proceedings carries with it many rights whtich

Congress did not intend private litigants to have. Thus, |

a charging parties - ‘can intervene ’ iri the appeal, they .

would - undoubtedly : seek to intervene in the district

court proceeding. Affording the charging parties the

"right to interyene agd all of the rights’ of a party to!

the proceeding necessarily raises questions as to their

right, to appeal and as ‘to their right to initiate con-

ae tempt proceedings. It ‘certainly was nof the intent, of

‘Congress to allow a private litigant to appeal and seek

an injunction from a higher court which it could: not

have sought nor ‘obtained from the lower court. Nor |

could it have been the intent of. Congress ‘to om i a

private litigant with the: right to° initiate contemp pro

¢eedings based on violation of an. injunction which a

~ was legally proscribed from. obtaining originally. Nor

| was: it the intent of Congress to permit | a charging

party tosdictate the course of Jitigation i in § 10 (1).

, proceedings.

The: decision of the Ninth Circuit Sigil, petition

ers the right to intervene in this: proceeding properly

limits the participation of private litigants in § 10°

(1) proceedings to the extent intended and expressly.

provided for by Congress in’ § 10 (1); and it is con-

sistent with the intent of Congréss in the Norris-La

Guardia Act ‘and’,the National Labor Relations Act

to severely restrict, 4 use of the. temporary injunc-

tion in labor disputés and to prevent. private parties .

: from either obtaining such injunctions or from dictating _

‘the course of litigation with 1 Fespect to such injunc- .

tions.

a

3. The order of the court below is not in conflict

with the decisions of other courts of appeal.

Petitioners contend that thé order of the Ninth Cir-

cuit denying intervention herein is in conflict with the

order of the Court of Appeals for the Second Circuit

in McLeod v, General Electric Co., 366 F.-2d 847

(2d Cir. 1966). However, there is neither a holding

nor a discussion. of the issue of intervéntion by the

Second Circuit in McLeod. It is not clear whether the

charging parties’ intervention in that case was opposed,

nor. whether the issue ‘was litigated. It also appears

that the question of intervention was ‘not subsequently

litigated on the: petitions for writ of certiorari in\the |

Supteme Court, 385 U.S. 533 (1967). - <8

Moreover, the Second Circuit has previously corn-

Sidered the role of a charging party in a §.10 (1) pro-

ceeding, and like the Ninth Circuit, has held. that the

charging parties’ role is a limited one, Thus, in Mc-.

Leod v. Business Machine and Office, Appliance Me-° -

chanics Conference Board, 300 F. 2d 237 -(2d Cir.

1962), the Second Circuit rejeéted an argument raised

by the charging ‘party in a § 10 (1) proceeding, since

the Regional Director had not relied upon this-and had

not alleged it. The Court analyzed in detail the rights,

of a charging party. in proceedings under § 10 (1)

and said:

“The charging party, Rand, contend that hand-

bills distributed are untruthful and, Caareture, not

protected by the ‘publicity proviso.’ Because the

Regional Director has not relied upon this in his

petition or argument, we believe the question gov-

erned not by section 10 (1), but by the Norris-

‘LaGuardia Act. We lack jurisdiction, therefore, to .

i

-

at

atl — ee

grant relief, Section 10 (1) is operative only upon .

the filing of a petition by a Regional Director of

the Board. This limitation was imposed ini order

to restrict the potential involvement of federal

courts in labor disputes. . . . We dre mindful of

the fact the statute allows the charging’ party to

appear by counsel and to present relevant tes-

timony. We believe, however, the principal role in

these proceedings is to- be played by the Regional

Director acting in the public interest, and while

the charging party is free to aid him in the Course .

of the ditigation, the charging party may not’ sub-

stitute itself as‘ the principal complainant.” (300

F..2d at 242-243). : CAN -¢

NLRB v. Nashville Building & Construction Trades

Council, 383 F. 2d 562 -(6th Cir. 1967), also cited by

the petitioners, involved three legal proceedings, all, of

which were before the Sixth Circuit. The three pro-

ceedings were an appeal of a temporary injunction

granted by the district court under § 10 (1), a petition

for writ of mandamus filed by the respondent union,

and a petition for enforcement-of the final NLRB order

on the merits. The question of intefvention in the § 10

(1) appeal was not-decided or discussed by the Sixth

Circuit." Although three praceedings .were before the

Sixth Circuit, that court noted at page 563, footnote

1, that the petition of the charging party to intervene in

the enforcement. proceedings was granted. The charging

party did not intervene in the appeal of the injunction

issued under '§ 10 (1) even though that proceeding was

“also before the court, and the Sixth Circuit was care-

ful to specify that the charging party was intervening

in the enforcement proceeding, citing UAW v. Scofield,

"supra. i

80 Di 1 ty tte Oh ee ee ee ot oe i as i Gey

. °

| —s—

Thus, there is certainly no clear conflict among the

courts of appeal. The views of the Second and Sixth

' Circtits on this issue have not been expressed by those

,courts and are certainly not clearly defined; both courts

have indicated that a charging party’s role in § 10 (1)

‘proceedings is a limited one. In any event, this ques-

tion is not ripe for consideration by this Court in view

‘of the lack of any clear expression of the view of other,

courts of agpeal:

4. The question presented does not Involve an im-

portant issue which this Court should decide. While pe-

titioners correctly point out that 227: § 10 (1) injunc-

tion proceedings /were filed i in the district courts in fis-

cal 1965, it is important to note that of this number,

together with 13 cases pending at the beginning of the

‘year, 73 cases were settled, eight dismissed, 48 contin-

ued in an inactive status, 16 withdrawn, ‘and nine

were pending court ‘action at the close of the year.

Only 86 petitions went to final order in fiscal ~1965.*

Similarly, of the 18 petitions for temporary relief. un-

der § 10 (j) 7filed in fiscal 1965, only 13 went to final

7 order i in the district court.**

Undoubtedly, only a small percentage of, these cases

were appealed, and although petitioners nténd that a

court of appeals will have to face the issue of inter-

vention each time an appeal is taken, it ig far more likely

that many charging parties will not seek to prervene

in the proceedings. Thus, the question presented herein

*Thirtieth Annial Report of the National Labor Relations

Board, at 146.(1966). °

**Id., at 143.

*

WP et 4

OL a a A tn ten tp Hehe

will not : arise with witty pe frequency suggested by pe-

titioners, and, in fact, would. more likely arisé only in-

frequently. se ;

Respondent unions "respectfully submit that this pe-

_ tition does not present a particularly important federal

question which should” be settled by this Court and

that the question presented i is neither ripe for consider-

ation at this time nor of sufficient import ‘to warrant

this Court’s consideration. = _—— : ,

Conclusion. ». oe ~,

For the Soveguing reasons, it ig respectfully urged

that the petition for writ of certiorari should be denied.

Respectfully submitted,

- STEPHEN REINHARDT,

; | Attorney for Respondent Unions.

Of Counsel: |

Bop Le, FoceL, JULBER and

REINHARDT, ;

-GrorcE E. Bop te,

DANIEL FOGEL,

LresTER G. OsTRov,

BrunpacE & Hackier,’ }

Darwin, RosENTHAL:& LErr,

RICHMAN, GarreETT & ANSELL,

Levy, De Roy, GEFFNER & VAN Bours. |