Authorization of Regional Directors to Process Without Clearance Requests and Applications For Temporary Restraining Orders in Section 10(1) Proceedings -- Guide for Processing

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OFFICE OF THE GENERAL COUNSEL

MRMORANDUM 75-18

April 22, 1975

TO:

All Regional Directors, Officers-in-Charge,

and Resident Officers

FROM:

Peter G •. Nash

General Counsel

SUBJECT:

Authorization of Regional Directors to Process

Without Clearance Requests and Applications for

Temporary Restraining Orders in Section 10(1)

Proceedings -- Guide for Processing

Regional Directors are hereby authorized to act on requests for TRO's and

to apply for TRO's in appropriate Section 10(1) cases without prior

Washington clearance. !/

The extensive experience acquired by Regional Offices over the years in

handling issues related to the application for temporary restraining orders,

the obvious need for expedition in determining whether temporary relief is

required, and the fact that decisions in this area are best made by those

closest to the controversy and the practicalities of the situation support

fully the authorization here given.

The following material has been prepared to assist Regions in this area.

Prerequisites and Time Limitations

For Temporary Restraining Orders

Section 10(1) empowers the district court to grant a temporary restraining

order without notice, upon a showing of reasonable cause to believe that

substantial and irreparable injury to the charging party will otherwise be

unavoidable.

The Regional Director ~y apply for a TRO upon the filing

of the petition or at any subsequent stage in the proceedings.

Douds v.

Wine, Liquor & Distillery Workers Union, 75 F. Supp. 184, 186 (S.D.N.Y.,

1947).

A TRO is to be effective for no longer than a five-day period, but

in computing the ~ive-day period, Saturdays, Sundays and legal holidays

are excluded (Rule 6 F.R.C.P.). 11

The language of Section 10(1) to the effect that a TRO "shall be effective

for no longer than five days and will become void at the expiration of such

period" is identical to the language of Section 7 of the Norris-LaGuardia

Act, and was apparently derived from that Act

-day period, but

in computing the ~ive-day period, Saturdays, Sundays and legal holidays

are excluded (Rule 6 F.R.C.P.). 11

The language of Section 10(1) to the effect that a TRO "shall be effective

for no longer than five days and will become void at the expiration of such

period" is identical to the language of Section 7 of the Norris-LaGuardia

Act, and was apparently derived from that Act.

Although the legislative

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This delegation of authority to seek temporary restraining orders does

not apply to lO(j) cases where authorization of the lO(j) proceeding-

itself must still be obtained from the Board.

Except as indicated

herein, the standards for TRO requests in lO(j) cases are similar to

those under Section 10(1).

TRO's under Section lO(j), on the other hand, would appear to be

subject to the limitation of Rule 65(b), F.R.C.P. (10-day limitation;

may be extended for an additional 10 days).

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history of Section 10(1) does not cast any light on this language, the

legislative history of Norris-LaGuardia indicates that Congress considered

but decided against allowing extensions of TRO's during the pendency

of the hearing on an application for a preliminary injunction.

See,

Senate Committee on the Judiciary, To Define and Limit the Jurisdiction

of Courts Sitting in Equity, S. Rep. No. 163, 72d Cong. 1st Sess. 22 (1932)

and (Minority Rep.) S. Rep. No. 163 pt. 2, 72d Cong. 1st Sess. 22 (1932).

An amendment inte~ded to grant such authority was specifically rejected in

the House and Senate ".debates.

House Debate on H.R. 5315, 75 Cong. Rec. 5508

injunction.

See,

Senate Committee on the Judiciary, To Define and Limit the Jurisdiction

of Courts Sitting in Equity, S. Rep. No. 163, 72d Cong. 1st Sess. 22 (1932)

and (Minority Rep.) S. Rep. No. 163 pt. 2, 72d Cong. 1st Sess. 22 (1932).

An amendment inte~ded to grant such authority was specifically rejected in

the House and Senate ".debates.

House Debate on H.R. 5315, 75 Cong. Rec. 5508

(1932); Senate Debate on S. 435, 75 Cong. Rec. 4702 (1932). Moreover,

Rule 65 (e) of the Federal Rules of Civil Procedure provides that "These

rules do not modify any statute of the United States relating to temporary

restraining orders and preliminary injunctions in actions affecting

employer and employee." In sum, it would appear that Congress intended

to limit TRO's in 10(1) proceedings to five days, without the possibility

of any extension being granted as in the case, for example, of a TRO

under Section lO(j).

In practice, in 10(1) proceedings where TRO relief

is sought, the Petitioner has invariably requested that the hearing on the

preliminary injunction be scheduled within the TR0 1s five-day period.

It appears that the five-day time limitation of Section 10(1) would apply

to any order entered prior to an evidentiary hearing, findings of fact,

and conclusions of law.

Thus, in Granny Goose Foods, Inc. v. Teamsters,

415 U.S. 423, 85 LRRM 2481, 2487-88 (1974), the Supreme Court ruled that

the phrase "temporary restraining order . . • granted without written or

oral notice," as used in Rule 65(b), encompasses any order entered without

an evidentiary hearing, findings of fact, and conclusions of law. 11

In view of the comparable phrasing "without notice" of the TRO provision

of Section 10(1), it would appear that the five-day limitation in that

Section would have a similar application

rase "temporary restraining order . . • granted without written or

oral notice," as used in Rule 65(b), encompasses any order entered without

an evidentiary hearing, findings of fact, and conclusions of law. 11

In view of the comparable phrasing "without notice" of the TRO provision

of Section 10(1), it would appear that the five-day limitation in that

Section would have a similar application. Moreover, the fact that

respondent may have been given notice of the hearing, and the fact that

the issue of irreparable injury may have been litigated at the hearing,

would apparently neither serve to remove the order from the five-day time

limitation of Section 10(1) nor convert the order into a preliminary

injunction, where there have been no findings of fact and conclusions of

law based on an evidentiary hearing.

In view of this, any application

for injunctive relief beyond the five-day period should not be made without

a full 10(1) hearing on the merits and should be supported by proposed

findings of fact and conclusions of law. ~/

11 See, also, Pan American World Airways, Inc. v. Flight Engineers•

International Ass'n., 306 F. 2d 840, 842 (C.A. 2, 1962), and Sims v. Greene,

160 F. 2d 512 (C.A. 3, 1947); cited by the Supreme Court in G~y Goose

(n. 14), where the courts equated the term "notice" with a hearing and

determination on the merits of the preliminary injunction.

~/ Should circumstances arise where the court fails to set an early date for

a 10(1) hearing so that a five-day TRO will expire before the completion

of that hearing, the Region should apprise the Division of Advice of the

situation.

The Region may, of course, seek to obtain an agreement from

Respondent, under the aegis of the court that Respondent will refrain

from engaging in the conduct at issue for a period longer than five days.

t fails to set an early date for

a 10(1) hearing so that a five-day TRO will expire before the completion

of that hearing, the Region should apprise the Division of Advice of the

situation.

The Region may, of course, seek to obtain an agreement from

Respondent, under the aegis of the court that Respondent will refrain

from engaging in the conduct at issue for a period longer than five days.

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When application is made for a TRO (typically, but not necessarily, at

the time the injunction .petition is filed), an effort. should be made to

advise the respondent that an application for such a TRO .will be made

at a given time,. so that respondent might be present then.

(See Rule

65(b)(l)(2), F.R.C.P.).

The application should be set forth in the

petition for an injunction, or if at a later stage, may be made by

motion or amendment to the petition.

The application should be supported

by an affidavit or affidavits of persons having knowledge of the facts,

setting forth the facts which demonstrate the ·threatened or actual

irreparable injury, and specifically describing the irreparable injury.

The petition should summarize the facts supporting the TRO and should

allege, in addition to irreparable injury to the charging party, other

probable consequences, e.g., irreparable injury to the public interest, .

the community, national defense, employees or their rights, other

employees or persons, and in all cases, irreparable injury to the

policies of the Act.

The grant or denial of a temporary restraining order is apparently not

an interlocutory decision within the meaning of 28 u.s.c. 1292 providing·

for review of interlocutory orders "granting, continuing, modifying, refusing

or dissolving injunctions, or refusing to dissolve and modify injunctions,"

and is therefore· apparently not appealable.

Austin v. Altman, .. 332 F. 2d

273 (C.A. 2, 1964); Pennsylvania Motor Truck Ass'n. v. Port of Philadelphia

Marine Terminal Ass'n., 276 F.2d 931 (C.A. 3, 1960)

meaning of 28 u.s.c. 1292 providing·

for review of interlocutory orders "granting, continuing, modifying, refusing

or dissolving injunctions, or refusing to dissolve and modify injunctions,"

and is therefore· apparently not appealable.

Austin v. Altman, .. 332 F. 2d

273 (C.A. 2, 1964); Pennsylvania Motor Truck Ass'n. v. Port of Philadelphia

Marine Terminal Ass'n., 276 F.2d 931 (C.A. 3, 1960).

Wright and Miller,

11 Federal Practice and Procedure 12962 at 616 n. 92.

If ·a TRO is denied,

the Region should request that .the matter be promptly set down for hearing

on the petition forpreliminary injunction.

If the request for. prompt

hearing is denied the Region· should call the Division. of Advice.

Consideration can then be given to whether the denial of a TRO and ,

prompt hearing would, in the circumstances amount to denial of the petition

for a preliminary injunction and constitute an interlocutory order which

would be appealable. See United States v. ~. 295 F.2d 772, 776-78 (C.A. 5,1961)

Irreparable Injury

Section 10(1) expressly provides that irreparable injury to the charging

party be shown before issuance of an~ »-tl!t TRO. 'il However, once the

statutory requirement is met, additional injury to others, e.g., the

'J./ Section lO(j) contains no such requirement, but would appear to be subject

to the· requirement of Rule 65(b), F.R.C.P., that a showing be made "that

immediate and irreparable injury, loss or damage will result to the

applicant before the adverse party or his attorney can be heard in

opposition".

Therefore, as the Board is the applicant, the application

may be based in whole or part upon a showing of irreparable injury to

the policies of the Act.

ear to be subject

to the· requirement of Rule 65(b), F.R.C.P., that a showing be made "that

immediate and irreparable injury, loss or damage will result to the

applicant before the adverse party or his attorney can be heard in

opposition".

Therefore, as the Board is the applicant, the application

may be based in whole or part upon a showing of irreparable injury to

the policies of the Act.

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community or national defense, can and should be demonstrated in the

application. ~/ Moreover, while a showing of irreparable harm to the

charging party might not, standing alone, warrant issuance of a TRO,

such a showing in conjunction with irreparable injury to others (e.g.,

the community), might satisfy the statutory requirement.

In such

circumstances, the totality of irreparable injury that would occur

may warrant application for a TRO. 11

Where irreparable injury to the

community or to the national defense is involved, the statutory require-

ment is met if the charging party is the governmental body or agency

affected by the charged unlawful conduct.

In considering what is irreparable injury, it is to be remembered that the

·rRO is intended only to prevent such damage during the pendency of the

injunction proceeding (typically, between the filing of the petition for

an injunction and the injunction hearing itself). Accordingly, allegations

of irreparable injury based on alleged damage continuing thereafter would

ordinarily not be relevant.

What is irreparable injury to a charging party depends, of course, on the

circumstances.

The following is illustrative of situations where appli-

cations for a TRO might be warranted:

1.

Substantial financial loss.

This is, of course, relative since a

substantial daily financial loss by a major industrial enterprise may not

be sufficient injury to warrant a TRO, while the same amount may constitute

irreparable injury to a small company

depends, of course, on the

circumstances.

The following is illustrative of situations where appli-

cations for a TRO might be warranted:

1.

Substantial financial loss.

This is, of course, relative since a

substantial daily financial loss by a major industrial enterprise may not

be sufficient injury to warrant a TRO, while the same amount may constitute

irreparable injury to a small company.

For TRO purposes, irreparable

injury does not generally include normal, fixed, expenses such as salaries

of personnel and overhead.

While such financial losses to the charging

party, standing alone, might not warrant application for a five-day TRO,

those losses, if coupled with the threat of more serious harm to other

persons or to the public might warrant a TRO.

Further, where those losses

may be so great as to be uncollectable from the respondent (insufficient

assets, etc.) a TRO may well be warranted.

~I District courts, in unreported decisions, have issued TRO's whica were

based in whole or in part upon a showing of irreparable injury to the

public generally, or to persons other than the charging party.

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See, Danielson v. Laborers, Local 275, 479 F. 2d 1033, 1037 (C.A. 2,

1973), in which the court held that picketing which failed to shut down

a construction. project, but delayed work, thereby causing the incurring

of expenses and prevention of profits, was conduct which resulted in

"substantial and irreparable harm" to the employer within the

traditional equitable meaning of that term.

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ee, Danielson v. Laborers, Local 275, 479 F. 2d 1033, 1037 (C.A. 2,

1973), in which the court held that picketing which failed to shut down

a construction. project, but delayed work, thereby causing the incurring

of expenses and prevention of profits, was conduct which resulted in

"substantial and irreparable harm" to the employer within the

traditional equitable meaning of that term.

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2.

Substantial impact on the national defense, e.g., interruption to

construction or maintenance work on a military installation.

See, Boire

v. Local 295, Plumbers, 59 LRRM 2694 (M.D., Fla., 1956).

3.

Picketing or strike conduct which presents aa imminent threat of

bankruptcy or insolvency, loss of a business relationship, substantial un-

employment, or a substantial loss of business or customer good will.

See,

Kaynard v. Independent Routemen's Ass'n., 479 F. 2d 1070, 1073 (C.A. 2,

1973).

4.

Violence or mass picketing.

See, In re Puerto Rico Newspaper Guild,

476 F. 2d 856, 857 (C.A. 1, 1973).

5.

Dangerous consequence of a work stoppage, e.g., dangers of a partially

completed structure collapsing or of tunnel areas flooding.

6.

Threatened spoilage of perishable goods.

See, Sarnoff v. Int'l.

Longshoremen's Ass'n., 188 F. Supp. 308, 311 (D. Del., 1960); Schauffler v.

Local 1291, ILA, 46 LRRM 2047, 2049 (E.D. Pa., 1960).

7.

Serious adverse impact upon the community, e.g., disruption of a public

utility or business deemed vital to the public health, safety or general

welfare, or delay in opening a school or hospital.

See, Hoffman v. ILWU

Local 10. et al., 85 LRRM 2353, 2354 (C.A. 9, 1974); see also, G. c.

Memorandum 74-49 (Health Care Institutions) at p. 29.

8.

Time of the essence, e.g., threatened disruption of a scheduled event

or seasonal business, or unfair labor practices which threaten to interfere

with a pending Board-conducted election.

See, Hoffman v. ILWU, Local 10,

supra.

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ol or hospital.

See, Hoffman v. ILWU

Local 10. et al., 85 LRRM 2353, 2354 (C.A. 9, 1974); see also, G. c.

Memorandum 74-49 (Health Care Institutions) at p. 29.

8.

Time of the essence, e.g., threatened disruption of a scheduled event

or seasonal business, or unfair labor practices which threaten to interfere

with a pending Board-conducted election.

See, Hoffman v. ILWU, Local 10,

supra.

9.

Situations posing serious remedial problems in Board litigation, e.g.,

imminent discriminatory shutdown of a plant, or imminent threat of

dissipation of assets in a pending Section 8(a)(3) case.

See, Douds v.

Anheuser-Busch Inc., 28 LRRM 2377 (D.N.J·., 1951).

As with any unfair labor practice issues, the Region may submit to the

Division of Advice TRO issues that are novel, not clearly governed by

controlling precedents. or otherwise deemed appropriate for submission by

the Regional Director.

Distribution:

Washington -

Regional

Special

Special

Peter G. Nash

MEMORANDUM 7 5- 18