# Brief in Opposition to Petition for Writ of Certiorari — Los Angeles Herald Examiner v. San Francisco-Oakland Newspaper Guild > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0092%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief in Opposition to Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 393 U.S. 926 ## Text , SUBJECT INDEX Question Presented Statute Involved —. Statement of the Case Reasons for Denying the Petition -..: Conclusion , 19 7 TABLE OF’ AUTHORITIES CITED © 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 On May 20,,-1968, the Court of: Appeals — ' rescinded its order of April 19, 1968 so faréas’ that order permitted intervention by petitioners, but deerned said order as an authorization for charging parties -to -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. — 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. | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0092%3A2. Public record. Not legal advice.