Opposition Brief — Electro-Voice, Inc. v. National Labor Relations Board

Supreme Court, U.S.

at 2. se

(a) NOV ©5 1996

No. 96-469 CLERK

ences |

Jn the Supreme Court of the Ginited States

OCTOBER TERM, 1996

ELECTRO-VOICE, INC., PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

WALTER DELLINGER

Acting Solicitor General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

FREDERICK L. FEINSTEIN

General Counsel

LINDA SHER

Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

JOHN EMAD ARBAB

Attorney

National Labor Relations Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether the court of appeals erred in holding that

the Regional Director of the National Labor Rela-

tions Board (Board) was entitled to interim injunctive

relief, pursuant to Section 10(j) of the National Labor

Relations Act, 29 U.S.C. 160( j), pending the Board’s

disposition of an administrative complaint against

petitioner.

(I)

TABLE OF CONTENTS

Page

I an i a l

ee NAT TERT SONGS A ch CELE HRY RETR 1

aE ENT IONTERT a eset Ieee aa a: Se 2

I a te 4)

I et ee 20

GES ENTS SE Io Ne PE la

RE a I ERM ate OE Oe Be EO EO OR 3a

TABLE OF AUTHORITIES

Cases:

Arlook v. S. Lichtenberg & Co., 952 F.2d 367

I at 15

Barbour v. Central Cartage, Inc., 583 F.2d 335

I 10

Boire v. Pilot Freight Carriers, Inc., 515 F.2d

1185 (5th Cir. 1975), cert. denied, 426 U.S. 934

| RRS “ESET OE aA ae SOS eu ee Sale 15

Dove v. United States, 423 U.S. 325 (1976) ......... 13

Electro-Voice, Inc.:

320 N.L.R.B. No. 134 (Mar. 29, 1996) ................. 6

321 N.L.R.B. No. 63 (June 5, 1996) .................... 6, 8

Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d

NS ai a 15

Frye v. Specialty Envelope, Inc., 10 F.3d 1221

SE AE, OE Whee tintin dataittighec een a OS 15, 18

Gay v. Ruff, 292 U.S. 25 (1984) .............ccccccsccseee 12

Kaynard v. Mego Corp., 633 F.2d 1026 (2d Cir.

GER CRESE RET CERSE SSG Oso Cee Gaal Nae ol gig 15

Kinney v. Pioneer Press, 881 F.2d 485 (7th Cir.

REN PETC a eal FOES age OR ORES CE TRE 7, 15, 16, 17

Kobell v. Suburban Lines, Inc., 731 F.2d 1076

ET sg 15, 18

McLeod v. General Elec. Co., 385 U.S. 533

SUSIE. TINGE a ey R AE MRO, TSE 17

(IIT)

IV

Cases—Continued: Page

Miller v. California Pacific Medical Center,

19 F.3d 449 (9th Cir. 1994) ...........ccccsssseees 10, 13, 16, 19

Murphy v. Hunt, 455 U.S. 478 (1982) ................. 12

NLRB vy. Gissel Packing Co., 395 U.S. 575

CRITI ciisninignecenesiicctidanietniataanbindahinenileatesbiiaheansnnnsiiisie 4

Nebraska Press Ass'n v. Stuart, 427 U.S. 539

CUTIVE sccunscceuhisbidepsinssiniectinssdientiniieabinakiesidsgcensuate 12

Pye v. Sullivan Bros. Printers, Inc., 38 F.3d 58

COE: A. SERED sannniccenecincitciensiaiicarnskaderisgnsitibabinasinels 17, 19

Rivera-Vega v. Conagra, Inc., 70 F.3d 153

CEE, ae ID witteniiecintinainnasesnsnenstnabennegbinnnn 9, 15, 19

Roland Machinery Co. v. Dresser Indus. Inc.,

TOD Fe Te CHa GRR, TID west neces eciecinesensscenreees 18

Sears, Roebuck & Co. v. Carpet Layers, Local

Union No. 419, 397 U.S. 655 (1970) .............ceeeees 10

Silverman v. Major League Baseball Player

Relations Committee, Inc., 67 F.3d 1054 (2d

CATs, FUE wcanicimiancnceuadeebatvetasdubtediedisliieebadesschecainne 15

United States v. Munsingwear, 340 U.S. 36

CRIES stccbbiveriesiddcniaaseeceeesnacasdasnbaiatbbiaasenids 14

Weinstein v. Bradford, 423 U.S. 147 (1975) ........ 12

Statutes and rules:

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

et seq.:

§ 8(a)(1), 29 U.S.C. 158(a)(1) ......cssessseeseeeseeees 3, 6

§ 8(a)(3), 29 U.S.C. 158(a)(8) ......ccceescerereeseeeees 3, 6

§ 8(a)(5), 29 U.S.C. 158(a)(5) .........cccccessssceneees 3, 6

© Ey Bae ies RPGR: seirevecenpnvesticsninsnnntenges passim

+ DR tee Sites BOUND ctccsicrcsecssccvniisonanrenceds 10

SB UR Nee pikptaticdineianiecsctensstieernennsenasitiienions ll

POEs Bhs BI. Bs GOMES) wienevanersorevisessincetvscsaimaniiniinn 12

Sup. Ct. R.:

BE Be veitcsreusnsciseastenternieniearinbianeeenipnnanenipaiaapenty 13

NE-ES oii ccabiaiisnininailsiediiaintatniadapeacaaiibianinmaaiaaedaeis 11

Miscellaneous: Page

13A Charles Alan Wright, et al., Federal Practice

and Procedure (2d ed. 1984 & Supp. 1996) ......... 14

Robert L. Stern, et al., Supreme Court Practice

CFR ils: UE xtnssiciech sdienie atsnitiaas tuciaeiiiaccniiaeyeeianioas 14

In the Supreme Court of the Gited States

OCTOBER TERM, 1996

No. 96-469

ELECTRO-VOICE, INC., PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

32a) is reported at 83 F.3d 1559. The opinion of the

district court (Pet. App. 39a-74a) is reported at 149

L.R.R.M. (BNA) 2476. The subsequent decision and

order of the district court dismissing this action as

moot (App., infra, la-4a) are unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App. 33a)

was entered on April 26, 1996. On July 18, 1996, Jus-

tice Stevens extended the time for filing a petition for

a writ of certiorari to and including September 23,

1996 (Pet. App. 75a), and the petition was filed on that

(1)

date. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

1. Petitioner manufactures fiberglass stadium

horns, electronic cross-over panels, and cables for

military headsets at a plant in Mishawaka, Indiana.

Pet. App. 2a. In early 1994, employees working at the

Indiana plant began to raise various work-related

concerns with management. /d. at 3a. In January or

February, employee Pam Buford informed peti-

tioner’s human resources manager, Minnie Warren,

that employees were dissatisfied with plant manager

Dennis Northam and with working conditions in the

plant. Buford requested a meeting with Warren to

discuss these matters. Jbid. Two weeks later,

Northam and another management official met with

the employees and informed them that no changes

would be made. J/bid. Employees also approached a

supervisor about obtaining additional exhaust fans to

alleviate excessive heat and air pollution in the plant;

their request was also denied. /d. at 3a-4a.

In May 1994, having received no action from

management on her complaints, Buford met with her

co-workers to discuss forming a union. In June, she

contacted a representative of the International Union

of Electronic, Electrical, Salaried, Machine and Fur-

niture Workers, AFL-CIO (Union). Pet. App. 2a, 4a.

A Union meeting was held on June 22, 1994. At that

meeting, 21 of the 30 plant employees signed union

authorization cards, and 11 employees volunteered to

serve on an organizing committee. Jd. at 5a, 24a. On

July 7, 1994, the Union requested that petitioner

voluntarily recognize it as the employees’ collective-

bargaining representative. The Union also filed a

representation petition with the National Labor

Relations Board (Board). Jd. at 8a, 45a.

The same day, after receiving the Union’s request

for recognition, Ronald Graham, petitioner’s vice-

president of human resources, ordered the termina-

tion of any employee who had accumulated more than

seven absentee “points,” or who had been employed by

petitioner for less than six months and had accumu-

lated “a good number.-of points.” Pet. App. 8a. The

new rules represented a sudden departure from the

company’s existing written attendance policy. Ibid.

Pursuant to Graham’s directive, nine employees were

immediately fired and replaced by personnel supplied

by a temporary employment service. Each of the nine

dischargees had signed a Union authorization card

and five of the nine had volunteered to work on the

organizing committee. Jd. at 9a.

On July 8, 1994, the day after the discharges, the

Union held a meeting, which was attended by only one

or two employees. Pet. App. 9a. Petitioner subse-

quently remedied various complaints that the employ-

ees had earlier voiced about their working conditions,

including providing them with requested fans and

tools, and adding seats in the break room. Id. at 9a-

10a. The Union held no further meetings with em-

ployees after July 8. Jd. at 10a.

2.a. On October 18, 1994, acting on unfair labor

practice charges filed by the Union, the Board’s

Regional Director issued an administrative complaint

against petitioner. The administrative complaint al-

leged that petitioner violated Section 8(a)(1), (3), and

(5) of the National Labor Relations Act (Act), 29

U.S.C. 158(a)(1), (3), and (5), by, among other things,

discharging employees in retaliation for supporting

the Union, threatening employees with plant closure

q

if they chose Union representation, and unlawfully

soliciting and remedying employee grievances in

order to thwart union efforts. Pet. App. 10a. On

December 19, 1994, a hearing on the administrative

complaint commenced before an administrative law

judge. The next day, December 20, 1994, the Regional

Director filed a petition in federal district court,

seeking interim injunctive relief against petitioner

pursuant to Section 10(j) of the Act, 29 U.S.C. 160()).'

Pet. App. 10a. The Regional Director requested,

inter alia, that the district court order petitioner to

bargain with the Union on an interim basis pursuant

to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),

! Section 10(j) provides in relevant part:

The Board shall have power, upon issuance of a com-

plaint * * * charging that any person has engaged in or

is engaging in an unfair labor practice, to petition any

United States district court, within any district wherein

the unfair labor practice in question is alleged to have

occurred * * *, for appropriate temporary relief or

restraining order. Upon the filing of any such petition

the court * * * shall have jurisdiction to grant to the

Board such temporary relief or restraining order as it

deems just and proper.

29 U.S.C. 160()).

2 Under Gissel, the Board may order an employer to bar-

gain with a union, rather than conduct an election, where

employee authorization cards establish that the union at one

time enjoyed majority support in the bargaining unit, and the

Board finds that “the possibility of erasing the effects of past

{unfair labor] practices and of ensuring a fair election * * *

by the use of traditional remedies, though present, is slight and

that employee sentiment once expressed through cards would,

on balance, be better protected by a bargaining order.” 395

U.S. at 614-615.

5

pending the Board’s adjudication of the unfair labor

practice complaint. Pet. App. 67a-68a, 70a.

b. On May 5, 1995, the district court denied the

Regional Director’s petition for Section 10(j) relief.

Pet. App. 38a. The court explained that, in ruling on

a Section 10(j) petition, it “must determine solely

whether a preliminary injunction * * * is ‘just and

proper,’” and that, “[t]o determine whether an injunc-

tion would be ‘just and proper,’ this court must apply

the traditional test in equity.” Jd. at 50a (internal

quotation marks omitted). The court further stated

that, “[uJnder the traditional test, * * * the [Re-

gional} Director must show: (1) a reasonable likeli-

hood of success on the merits; (2) an inadequacy of a

remedy at law or threat of irreparable harm if an

injunction is not issued; (3) the balance of the

threatened harms if an injunction is issued against

the threatened harms if an injunction is not issued;

and (4) that the preliminary injunction would serve

the public interest.” Jbid. Applying those principles,

the court declined to issue an interim injunction. Jd.

at 5la-73a.° The Board filed a notice of appeal from

the judgment of the district court on July 3, 1995. Jd.

at 35a.

3. On March 29, 1996, while the Board’s appeal in

the Section 10(j) case was pending before the court of

appeals, the Board issued a decision and order in the

8 The district court did not conduct an evidentiary hearing

with respect to the petition. Instead, it relied on the transcript

of the hearing before the administrative law judge, supple-

mented by additional evidentiary material. Pet. App. 10a-lla.

Based on those materials, the court concluded that the Regional

Director had not demonstrated a likelihood of success on the

merits, and had not met the other requirements of the tradi-

tional equitable test for injunctive relief. Jd. at 66a, 72a, 73a.

6

underlying unfair labor practice proceeding. Electro-

Voice, Inc., 320 N.L.R.B. No. 184 (Mar. 29, 1996). The

Board sustained the allegations of the Regional

Director’s administrative complaint, finding that

petitioner, in violation of Section 8(a)(1), (3), and (5) of

the Act, had (among other things) unlawfully fired

employees, threatened employees with plant closure,

solicited and remedied employee grievances, coercive-

ly interrogated employees, and unilaterally changed

its absenteeism policy. Slip op. 1-4, 16-19. The Board

found that petitioner’s “well-orchestrated, intensive”

conduct had “effectively killed off the Union’s organ-

izational campaign and proclaimed to the employees

that self-organization would not be tolerated.” Jd. at

4. Concluding that the possibility of holding a fair

election was unlikely in light of the “egregious”

nature of petitioner’s misconduct, the Board, inter

alia, issued a Gissel bargaining order. Id. at 3-4 &

n.7.

On April 16, 1996, petitioner filed with the Board a

motion for reconsideration and to reopen the adminis-

trative record for the purpose of receiving additional

evidence bearing on the propriety of the Gisse: order.

On April 19, petitioner filed a supplemental motion.

See Electro-Voice, Inc., 321 N.L.R.B. No. 68 (June 5,

1996), slip op. 1.

4. On April 26, 1996, while the above-noted motions

were pending before the Board, the court of appeals

reversed the district court’s denial of the Regional

Director’s petition for Section 10(j) relief. The court

of appeals remanded the case to the district court for

the entry of an injunction against petitioner, includ-

ing an interim Gissel bargaining order. Pet. App. la-

32a.

7

The court of appeals agreed with the district court

that, in determining whether the Regional Direc-

tor is entitled to Section 10(j) relief, courts “should

‘evaluate the propriety of the Director’s request with

an eye toward the traditional equitable principles

that normally guide such an inquiry.’” Pet. App. 12a

(quoting Kinney v. Pioneer Press, 881 F.2d 485, 490

(7th Cir. 1989)). The court of appeals concluded that

the district court had erred, however, in determining

the Regional Director’s burden of proof with respect

to those criteria. Jd. at 14a. The court explained that,

in order to obtain interim injunctive relief under

Section 10(j), the Regional Director must establish:

(1) that there is no adequate remedy at law, i.e., “that

an award of damages would be seriously deficient”:

(2) that public harm would result absent the injunc-

tion; (3) that the “labor effort” would be irreparably

harmed absent the injunction, and that that harm

would outweigh any irreparable harm to the em-

ployer; and (4) that the Regional Director has “some

likelihood of succeeding on the merits.” Jd. at 14a-l5a

(internal quotation marks omitted). The court fur-

ther explained that “some likelihood of succeeding on

the merits” means “a better than negligible chance”

of success. Jd. at 15a, 17a (internal quotation marks

omitted).

The court stated that the Regional Director “must

satisfy the first two requirements by a preponderance

of the evidence” and “must also show irreparable

harm by a preponderance of the evidence.” Pet. App.

14a-15a. The court further explained, however, that a

“sliding scale” analysis applies “between the likeli-

hood of success and the balancing of the harms”; the

Regional Director “need not demonstrate that the

harm to the labor effort outweighs the harm to the

8

employer if the Director makes a strong showing

under the fourth requirement. * * * In other words, a

strong showing by the Director of likely success on

the merits can offset a weak showing of harm.” /d. at

15a.

Applying the above principles, the court concluded

that the Regional Director was entitled to Section

10(j) relief in this case. Pet. App. 15a-3la. It found

that the Regional Director had established a suffi-

cient likelihood of success on the merits of the unfair

labor practice complaint (id. at 17a, 23a, 25a); that she

had made “a sufficient demonstration of irreparable

harm to the collective bargaining process” for which

there was no adequate remedy at law, and that peti-

tioner had “offered no countervailing demonstration

of irreparable harm that would result from a grant of

injunctive relief” (id. at 27a); and that “{tJhere is no

evidence that public harm would result from injunc-

tive relief” (id. at 28a). The court therefore remanded

the case to the district court for the entry of an in-

terim injunction against petitioner. Jd. at 32a.

5. On June 5, 1996, the Board issued an order

denying petitioner’s pending motions in the unfair

labor practice proceeding. Electro-Voice, Inc., 321

N.L.R.B. No. 63 (June 5, 1996). In light of the Board’s

issuance of a final order in the administrative pro-

ceeding, the Regional Director, on July 17, 1996, filed

a motion with the district court, seeking voluntary

dismissal of her Section 10(j) petition on the ground

of mootness.* On July 28, 1996, the district court

* After the Board issued its initial decision and order, the

Regional Director had filed with the court of appeals a motion

to dismiss her appeal as moot. Pet. App. 34a-37a. After peti-

tioner filed its motions for reconsideration and to reopen the

9

entered a judgment granting the Regional Director’s

motion and dismissed the Section 10(j) action. App.,

infra, la-2a. In an accompanying memorandum, the

district judge stated that “final adjudication has

occurred before the National Labor Relations Board,”

and that “the [Regional Director’s] action under

Section 10(j) * * * is therefore moot.” Jd. at 3a-da.

Petitioner did not appeal the district court’s dismis-

sal order, and no injunction was ever issued against

petitioner.®

ARGUMENT

Petitioner seeks review of the court of appeals’

decision that interim relief under Section 10(j) was

warranted in this case. Because the Board’s subse-

quent resolution of the underlying unfair labor prac-

tice charges against petitioner resulted in the termi-

nation of any interim relief, this case is now moot.

Moreover, because the decision below would not

otherwise warrant this Court’s review, the petition

should be denied.

1. Section 10(j) of the Act “authorizes the NLRB

to seek, and the United States district courts to

grant, interim relief pending the NLRB’s resolution

of unfair labor practices.” Rivera-Vega v. Conagra,

Inc., 70 F.3d 153, 158 (Ist Cir. 1995). Thus, “a § 10(j)

injunction exists only so long as the charges are

pending” before the Board; and any “temporary

administrative record with the Board, however, the Regional

Director requested, and the court of appeals granted, leave to

withdraw the Regional Director’s motion. Jd. at 76a.

® The company has filed a petition for review of the Board’s

order in the underlying unfair labor practice case. That pro-

ceeding is now pending in the court of appeals. See Pet. App.

77a-78a.

10

relief” granted the Regionai Director pursuant to

Section 10(j) “expire[s]” once “the Board has issued

its final order” in the underlying administrative

proceeding. Miller v. California Pacific Medical

Center, 19 F.3d 449, 453, 461 (9th Cir. 1994) (en banc).

Thus, as a general rule, “resolution of a § 10(j) injunc-

tion proceeding is rendered moot by the NLRB’s

decision on the merits of an unfair labor practice

complaint.” Jd. at 453; accord Barbour v. Central

Cartage, Inc., 583 F.2d 335, 336-337 (7th Cir. 1978). Cf.

Sears, Roebuck & Co. v. Carpet Layers, Local Union

No. 419, 397 U.S. 655 (1970) (per curiam) (injunction

proceedings under Section 10(l) of the Act, 29 U.S.C.

160(1)). Accordingly, this case became moot on June

5, 1996, when the Board denied petitioner’s motions

for reconsideration of its March 29, 1996 unfair labor

6 Section 10(l) of the Act requires the Board, upon finding

“reasonable cause” to believe that a labor organization has

engaged in a secondary boycott, or certain other proscribed

activity, to petition a federal district court for temporary

injunctive relief. Like Section 10(j), Section 10(/) empowers

the court “to grant such injunctive relief or temporary re-

straining order as it deems just and proper, notwithstanding

any other provision of law.” 29 U.S.C. 160(1). In Sears, the

Court held that the question whether the court of appeals had

erred in holding that Sears lacked standing to appeal from

the district court’s denial of the Regional Director’s Section

10(/) petition for an interim injunction against the union was

rendered moot by the Board’s final order in the underlying

administrative proceeding. 397 U.S. at 657. The Court ex-

plained that, “even if the Court of Appeals was wrong in

dismissing Sears’ appeal, any relief that that court might have

given would now have terminated,” because “any injunction

issued pursuant to that section terminates when the Board

resolves the underlying dispute.” Jd. at 657-659.

1]

practice decision. In recognition of that fact, the

district court, on July 28, 1996, granted the Board’s

motion to dismiss the Section 10(j) proceeding as

moot, rather than entering the interim injunction

directed by the court of appeals. App., infra, la-4a.

Petitioner concedes (Pet. 17) that, “[{blecause the

N.L.R.B. has reached final adjudication, the underly-

ing injunction is no longer of any purpose.” Peti-

tioner suggests (ibid.), however, that this Section

10(j) case is nonetheless not moot because it is one

“capable of repetition, yet evading review.” Peti-

tioner lacks a jurisdictional basis for raising that

contention, and, in any event, the contention lacks

merit. On remand from the court of appeals, the

district court dismissed this case as moot in light of

the Board’s intervening final decision in the under-

lying unfair labor practice proceeding. App., infra,

la-4a. Petitioner did not appeal the district court’s

judgment of dismissal. Having elected not to file an

appeal in the court below, petitioner lacks a jurisdic-

tional basis for seeking review of the district court’s

mootness ruling in this Court.’ The petition for

certiorari should be denied on that ground alone.

* If petitioner had appealed the district court’s mootness

ruling to the court of appeals, it could have petitioned this

Court for review before judgment was rendered by the court of

appeals. See 28 U.S.C. 2101(e) (authorizing application for a

writ of certiorari to review a case before judgment has been

rendered in the court of appeals); Sup. Ct. R. 11 (review before

judgment has been entered by court of appeals “will be granted

only upon a showing that the case is of such imperative public

importance as to justify deviation from normal appellate prac-

tice and to require immediate determination in this Court”).

As the Court has explained, the chief requisite for the exercise

of its power to review a case before judgment by the court of

appeals is that there be a case pending in the court of appeals,

12

In any event, contrary to petitioner’s contention

(Pet. 17), this case does not fall within the narrow

exception to the mootness doctrine for disputes that

are “capable of repetition, yet evading review.” See,

e.g., Nebraska Press Ass’n v. Stuart, 427 U.S. 5389,

546-547 (1976). As this Court has explained:

[I}jn the absence of a class action, the “capable of

repetition, yet evading review” doctrine [is] lim-

ited to the situation where two elements com-

bine[]: (1) the challenged action was in its duration

too short to be fully litigated prior to its cessation

or expiration, and (2) there [is] a reasonable ex-

pectation that the same complaining party would

be subjected to the same action again.

Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per

curiam). Accord Murphy v. Hunt, 455 U.S. 478, 482

(1982) (per curiam). This case does not meet the

second element of the test; there is no “reasonable

expectation” that, in the future, the Regional Direc-

tor will issue an unfair labor practice complaint

against petitioner, and that the violations alleged in

that (putative) complaint will be of sufficient severity

to cause the Regional Director to elect to seek

Section 10(j) relief against petitioner in federal court.

To the contrary, it should be presumed that petition-

er will henceforth conduct its labor-relations affairs

in a lawful manner. Cf. Pet. App. 70a (apart from

the events that gave rise to this case, petitioner

i.e., that a notice of appeal has been filed and that the case is

properly docketed in the court of appeals. Gay v. Ruff, 292

U.S. 25, 30 (1934). Here, petitioner has failed to file a notice of

appeal from the district court’s dismissal order, which was

entered on July 23, 1996 (see App., infra, 2a), and such an

appeal would now be out-of-time. See Fed. R. App. P. 4(a)(1).

13

has enjoyed “a history of amicable relations with

unions”); id. at 18a, 61a.

As we demonstrate below, the court of appeals’

decision in this case would not warrant the exercise

of this Court’s power of discretionary review in the

absence of a suggestion of mootness. Because the

Court would not otherwise grant review in this case,

it is neither necessary nor appropriate for the Court

to disturb the judgment of the court of appeals merely

because the controversy has subsequently become

moot. Accordingly, the petition should be denied. See

Dove v. United States, 423 U.S. 325 (1976) (per

curiam).

8 Miller v. California Pacific Medical Center, supra, cited

by petitioner (Pet. 17), is inapposite. There, the district court

granted a Section 10(j) injunction against the employer, a panel

of the court of appeals reversed, the court then granted the

Board’s petition for rehearing en banc, and the Board subse-

quently issued its final order. 19 F.3d at 451, 452-453. The

court found that the case was not moot because the employer

was “still in the process” of the corporate restructuring that

had given rise to the then-concluded unfair labor practice pro-

ceeding before the Board. As a result, there was “a reasonable

expectation that another labor dispute will arise and the Board

may again seek § 10(j) relief” against the employer. Jd. at 454.

No analogous circumstances obtain here.

° Because the decision whether to grant review on any issue

(including mootness) is discretionary with this Court, Sup. Ct.

R. 10, we consistently have argued that the Court should deny

review of cases that have become moot after the court of

appeals entered its judgment but before this Court has acted on

the petition for a writ of certiorari, when such cases do not

present any question that would independently be worthy of

this Court’s review. See, e.g., U.S. Br. in Opp. at 5-8, Velsicol

Chemical Corp. v. United States, cert. denied, 485 U.S. 942

(1978) (No. 77-900) (arguing that Court should deny certiorari

in moot cases that would not have warranted review on the

14

2. Petitioner’s principal contention (Pet. 8, 9-13) is

that the court of appeals’ decision conflicts with those

of other circuits insofar as it ordered the granting of

an injunction under Section 10(j) without a showing

of “reasonable cause” to believe that petitioner had

violated the Act. Although there is disagreement

among the courts of appeals as to the appropriate

legal analysis governing the issuance of Section 10(j)

injunctions, that disagreement would not warrant

this Court’s review of the judgment of the court of

appeals in this case.

The courts of appeals have adopted different ap-

proaches in determining whether the Regional Direc-

tor is entitled to a Section 10(j) injunction in a given

case. Most of the circuits follow a two-step inquiry,

determining, first, whether the Regional Director

has demonstrated “reasonable cause” to believe that

the party against whom relief is sought has violated

the Act, and, second, whether the Regional Director

has shown that an injunction would be “just and

merits); Robert L. Stern, et al., Supreme Court Practice § 18.5,

at 724 n.29 (7th ed. 1993) (discussing Velsicol doctrine and

stating that the Court appears to follow the practice urged in

the government’s brief in that case); but see 13A Charles Alan

Wright, et al., Federal Practice and Procedure § 3533.10, at

432-435 (2d ed. 1984 & Supp. 1996) (disapproving Velsicol doc-

trine and stating that vacatur under United States v. Munsing-

wear, 340 U.S. 36 (1950), is always appropriate when case

becomes moot before Court grants certiorari). Denial of certio-

rari is especially appropriate in this case, because the petition

neither requests, nor suggests the possibility of, vacatur under

Munsingwear and, indeed, petitioner would lack a jurisdiction-

al basis for doing so (see p. 11, supra). We have provided

petitioner a copy of the United States’ brief in opposition in

Velsicol.

15

proper” in the circumstances. See, e.g., Conagra, 70

F.3d at 158; Silverman vy. Major League Baseball

Player Relations Committee, Inc., 67 F.3d 1054, 1059

(2d Cir. 1995); Kobell v. Suburban Lines, Inc., 731

F.2d 1076, 1078 (8d Cir. 1984); Frye v. Specialty

Envelope, Inc., 10 F.3d 1221, 1224-1225 (6th Cir. 1993);

Arlook v. S. Lichtenberg & Co., 952 F.2d 367, 371-372

(11th Cir. 1992); Boire v. Pilot Freight Carriers, Inc.,

515 F.2d 1185, 1188-1189 (5th Cir. 1975), cert. denied,

426 U.S. 934 (1976).”

In Kinney v. Pioneer Press, 881 F.2d 485 (1989), the

Seventh Circuit adopted a different analytical ap-

proach. There, it concluded that “reasonable cause”

is not a relevant consideration in Section 10(j) cases;

rather, “[o]nce the Board seeks injunctive relief un-

der § 10(j), the only question for the court is whether

the Board has demonstrated that relief is ‘just and

proper.’” 881 F.2d at 493. In determining whether

an injunction is “just and proper,” the courts must

“evaluate the propriety of the [Regional] Director’s

request with an eye toward the traditional equitable

principles that normally guide such an inquiry.” Td.

at 490." The court of appeals in this case followed

10 The courts that follow this two-step framework differ

with respect to the standard that they apply in determining

whether an injunction is “just and proper”: some hold that

traditional equitable principles apply in determining the pro-

priety of a Section 10(j) injunction, see Conagra, 70 F.3d at

164; Kaynard v. Mego Corp., 633 F.2d 1026, 1083 (2d Cir. 1980),

while others hold that those principles are inapplicable, see

Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d 26, 30 & n.3

(6th Cir. 1988); Suburban Lines, 731 F.2d at 1078, 1091-1092.

"In excluding the “reasonable cause” inquiry from the

Section 10(j) analytical framework, the court in Pioneer Press

noted that “(t]he words ‘reasonable cause’ appear in § 10(/) but

16

Pioneer Press in ruling that a Section 10(j) injunc-

tion should issue. See Pet. App. 12a-13a & n.16. The

Ninth Circuit has followed the Seventh Circuit’s

approach. See Miller, 19 F.3d at 456-460.

As the court noted in Pioneer Press, the “reason-

able cause” inquiry parallels aspects of the “just and

proper” inquiry and, therefore, does not meaningfully

add to the Section 10(j) analysis:

When courts apply traditional equitable princi-

ples to inquire whether an injunction is “just and

proper” under § 10(j), no further purpose is served

by asking the district judge, as a preliminary

matter, to determine whether the [Regional] Di-

rector has established reasonable cause. * * * If

the General Counsel’s legal theory is inapt or if

the facts are stacked against the agency’s position

(i.e., if there is truly no reasonable cause to be-

lieve someone has breached the NLRA), it’s a safe

bet that injunctive relief is not “just and proper”

* * * because an injunction may not issue unless

not § 10(j)” of the Act, 881 F.2d at 489, and that the two provi-

sions have different structures:

The Board may invoke § 10(j) at its discretion whenever it

believes someone has transgressed the NLRA, but may do

so only after the General Counsel has filed an administra-

tive complaint. Section 10(/), by contrast, is mandatory.

It requires the Board to seek injunctive relief if an inves-

tigation yields “reasonable cause” to believe that secondary

boycotts or other identified kinds of especially grave

violations are in progress. * * *

“Reasonable cause” is the trigger of the Board’s duty

under § 10(/).

Id. at 489-490. See also note 6, supra.

age ates A St Rants

17

the plaintiff has at least a modest chance of

success on the merits.

881 F.2d at 491.”

Accordingly, there is no merit to petitioner’s

contention (Pet. 13) that, “(hjaving eliminated the

‘reasonable cause’ threshold, there is now no check

upon the N.L.R.B. in the Seventh Circuit requiring it

to show that it has sufficiently investigated a matter

before initiating a Section 10(j) proceeding.” Indeed,

petitioner concedes (Pet. 14) that the Seventh Circuit

acted properly in applying traditional equitable prin-

ciples to determine whether the Regional Direcitor’s

request for injunctive relief was “just and proper”;

it faults the court only for not preliminarily engag-

ing in the “reasonable cause” inquiry. See Pet. 9. As

the Seventh Circuit noted in Pioneer Press, however,

when traditional equitable principles are used in mak-

ing the “just and proper” determination, a “reason-

able cause” inquiry would simply be redundant. 881

F.2d at 491."

® Similarly, the First Circuit, which applies traditional

equitable principles in its “Just and proper” analysis but

continues to make an initial “reasonable cause” inquiry, has

stated: “We find no fault in our sister circuits’ rulings”

omitting the latter inquiry. Pye v. Sullivan Bros. Printers,

Inc., 38 F.3d 58, 64 n.7 (1994).

8 In 1967, the Court granted the Board’s petition for a writ

of certiorari in a case presenting the question whether tradi-

tional equitable principles are applicable in Section 10(j) injunc-

tion proceedings. The Court did not decide the issue in that

case, however. See McLeod v. General Elec. Co., 385 U.S. 533

(1967) (per curiam) (vacating court of appeals’ judgment and

remanding for further consideration in light of subsequent

execution of collective-bargaining agreement). In this case, the

18

Nor did the court of appeals’ exclusion of the

“reasonable cause” inquiry affect the outcome in this

case. “Reasonable cause” places a “relatively insub-

stantial” burden on the Board; to satisfy it, the Re-

gional Director need only produce “some evidence” of

a violation, and articulate a theory of liability that is

“not frivolous.” Frye, 10 F.3d at 1225; accord Kobdell,

731 F.2d at 1084. Here, in the course of determining

that an injunction was “just and proper” under tradi-

tional equitable principles, the court held that the

Regional Director had demonstrated a likelihood of

success on the merits of the unfair labor practice

complaint and that the Regional Director’s theories

of liability rested on settled legal principles. See Pet.

App. 17a; id. at 15a-25a. Those findings clearly estab-

lish that, had it engaged in the inquiry, the court

would also have concluded that the Regional Director

had demonstrated “reasonable cause” to believe that

petitioner had committed the unfair labor practices

alleged in the administrative complaint.

3. Petitioner also contends (Pet. 15) that the court

of appeals erred in permitting the Regional Director

to establish a “likelihood of success on the merits” by

demonstrating a “better than negligible” chance of

success. The court explained (Pet. App. 17a), how-

ever, that a “better than negligible chance” of success

on the merits means “some likelihood” of success, and

it went on to state that, “[o]nce the Director estab-

lishes some likelihood of success, ‘the court must

then determine how likely that success is, because

this affects the balance of relative harms. * * * The

more likely the plaintiff is to win, the less heavily

Board did not contest the Seventh Circuit’s analytical frame-

work in the courts below.

19

need the balance of harms weigh in his favor.” Id.

at 15a (quoting Roland Machinery Co. v. Dresser

Indus., Inc., 749 F.2d 380, 387 (7th Cir. 1984)). The

court correctly applied those principles in concluding

that the Regional Director “presented a case suffi-

cient to justify injunctive relief and an interim bar-

gaining order.” Pet. App. 32a.

Petitioner is mistaken in Suggesting (Pet. 15-16)

that the decision below conflicts with the decisions of

other courts of appeals. For example, petitioner’s re-

liance on Miller v. California Pacific Medical Cen-

ter, supra, is misplaced. There, the court adopted a

rule quite similar to the one articulated by the court

below. See 19 F.3d at 460 (“the Board can make a

threshold showing of likelihood of success {on the

merits] by producing some evidence to support the

unfair labor practice charge”; “likelihood of success

on the merits] must be weighed against the possibil-

ity of irreparable injury”). Similarly, the standard

applied by the First Circuit in Rivera-Vega v.

Conagra, Inc., supra, and Pye v. Sullivan Brothers

Printers, Inc., 38 F.3d 58 (1994), does not meaning-

fully differ from the one applied by the court of

appeals in this case.“

In Conagra, the court stated that, where “the interim

relief sought by the NLRB is essentially the final relief sought,

the likelihood of success should be strong.” 70 F.3d at 164

(internal quotation marks omitted). In Sullivan Brothers

Printers, the court stated that “interim relief in section 10(j)

cases is not normally appropriate unless it is clear that ultimate

success for the Board will not prove difficult.” 38 F.3d at 67

(internal quotation marks omitted). In this case, the Board’s

decision upholding the allegations of the Regional Director’s

administrative complaint, on much the same evidentiary rec-

ord as was before the court of appeals, strongly supports the

20

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

FREDERICK L. FEINSTEIN

General Counsel

LINDA SHER

Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

JOHN EMAD ARBAB

Attorney

National Labor Relations Board

NOVEMBER 1996

proceeding satisfied the standard articulated by the First Cir-

cuit in Conagra and Sullivan Brothers Printers.

|

conclusion that her case against petitioner in the Section 10(j)

APPENDIX A

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

Case No. 3:94-CV-10837RM

UNITED STATES OF AMERICA.

SAUNDRIA BoRDONE, REGIONAL

DIRECTOR OF THE TWENTY-FIFTH

REGION OF THE NATIONAL LABOR

RELATIONS BOARD, FOR AND ON BEHALF

OF THE NATIONAL LABOR RELATIONS BoarD,

PETITIONER

v.

ELECTRO-VOICE, INCORPORATED, RESPONDENT

JUDGMENT IN A CIVIL CASE

[] Jury Verdict. This action came before the court

for a trial by jury. The issues have been tried and the

jury has rendered its verdict.

[XX] Decision by Court. This action came before

the Court. The decision has been rendered.

IT IS ORDERED AND ADJUDGED the court

GRANTS petitioner’s motion for voluntary dismissal

and DISMISSES the petitioner’s action.

la

2a

This document entered pursuant to Rules 79(A) and 58

of the Federal Rules of Civil Procedure on:

July 23, 1996 Stephen R. Ludwig

By /s/ ANTHONY R. LEE

Deputy Clerk

3a

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

Case No. 3:94-CV-1087RM

UNITED STATES OF AMERICA,

SAUNDRIA BoRDONE, REGIONAL

DIRECTOR OF THE TWENTY-FIFTH

REGION OF THE NATIONAL LABOR

RELATIONS BOARD, FOR AND ON BEHALF

OF THE NATIONAL LABOR RELATIONS BOARD,

PETITIONER

v.

ELECTRO-VOICE, INCORPORATED, RESPONDENT

MEMORANDUM OF STATUS CONFERENCE

A status conference was held in this cause on J uly

22, 1996. Richard Simon represented the petitioner,

and James Stadler represented the respondent. At

Mr. Stadler’s request, the court attempted to reach

Jerry Smetna for the respondent, but Mr. Smetna was

not available to take the call.

The court heard arguments on the petitioner’s

motion for voluntary dismissal. The court finds that

final adjudication has occurred before the National

Labor Relations Board, and that the petitioner’s

action under Section 10(j) of the National Labor

4a

Relations Act is therefore moot. On this basis, the

court GRANTS the petitioner’s motion for voluntary

dismissal (filed July 17, 1996 (#72)), and DISMISSES

the petitioner’s action.

SO ORDERED.

ENTERED: ul 1996

/s/ ROBERT L. MILLER, JR.

ROBERT L. MILLER, JR., Judge

United States District Court

ee: Steele/Simon

Barnes/Stadler