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D'AMICO EX REL. NLRB

November 3, 1994

LOUIS J. D'AMICO, Regional Director of Region Five of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
UNITED STATES SERVICE INDUSTRIES, INC., Respondent.



The opinion of the court was delivered by: PAUL L. FRIEDMAN

 This matter is before the Court on the petition of Louis J. D'Amico, Regional Director of Region Five of the National Labor Relations Board, for a temporary injunction pursuant to Section 10(j) of the National Labor Relation Act (the "NLRA"), 29 U.S.C. § 160(j), against Respondent, United States Service Industries, Inc. ("USSI") pending resolution of an unfair labor practice proceeding before the Board. Upon the Court's issuance of an Order to Show Cause why injunctive relief should not be granted, Respondent filed an Answer to the Petition, and the Court heard argument on the issues raised in the Petition and the Answer. On the unopposed motion of Petitioner, and in accordance with Local Rule 205(d), no live testimony was heard by the Court.

 The Court granted permission to counsel for both parties to submit additional affidavits and documentary evidence relevant to certain issues raised at argument, and Respondent submitted a supplementary response. The charging party in the Board proceeding, Service Employees International Union, Local 82, AFL-CIO ("SEIU"), sought leave to file a brief as amicus curiae, and the Court granted the unopposed motion.

 For the reasons set forth in this Opinion and the accompanying Findings of Fact, Conclusions of Law and Order, the Court has determined that Petitioner has met its burden of demonstrating that the issuance of a temporary injunction is just and proper under Section 10(j) of the Act.

 I. BACKGROUND

 USSI employs 1400 maintenance and janitorial workers at various sites in Washington, D.C. and Maryland. SEIU is attempting to organize these employees for the purpose of collective bargaining. The workers are mostly Spanish-speaking and many work part-time. SEIU filed unfair labor practice charges against USSI with the Board on June 17, 1993, July 19, 1993, August 17, 1993 (amending the July 19, 1993 charge), November 8, 1993, January 24, 1994, March 16, 1994, and July 11, 1994. Pet. Ex. A, B, C, F, I, M. Each charge was referred to Petitioner as Regional Director of Region Five. The Regional Director, on behalf of the General Counsel of the NLRB, investigated the charges and, during the period from December 23, 1993 through June 3, 1994, issued Complaints and Notices of Hearing relating to each set of charges. Pet. Ex. D, G, J, L, N, O.

 On August 17, 1994, Regional Director D'Amico, on behalf of the Board, petitioned the Court for a temporary injunction under Section 10(j), alleging that there is "reasonable cause" to believe that USSI has engaged in unfair labor practices in violation of Sections 8(a)(1) and 8(a)(3) of the NLRA, 29 U.S.C. §§ 158(a)(1), (a)(3), and that the issuance of temporary injunctive relief is "just and proper" under Section 10(j). *fn1" Petitioner asserts that the Board's investigation of the six sets of charges filed by SEIU demonstrates that USSI engaged in a continuous course of illegal conduct that interfered with the rights of USSI employees to take part in organizational activities and to present petitions inquiring about wages and benefits.

 Specifically, Petitioner alleges that USSI supervisory personnel surveilled, interrogated and threatened workers because of their union activities, prohibited workers from wearing union insignia, restricted the right of employees to talk about the Union, confiscated union literature, promulgated an illegal no solicitation policy, instructed workers to inform supervisors of employees' union activities, failed to reinstate employees who made unconditional offers to return to work after unfair labor practices strikes, reinstated employees into positions that were not substantially equivalent to those they had left, and took adverse job actions against employees for their union activities. Petitioner requests a temporary injunction, requiring Respondent to cease and desist from committing unfair labor violations, to reinstate certain employees, and to disseminate copies of the Court's Order and Opinion to all current and future employees. Petitioner says that an injunction is necessary to prevent Respondent's illegal conduct from frustrating the very purposes of the NLRA.

 Respondent claims that the Union is not engaged in a legitimate organizing campaign. It notes that in over 22 years the Union has not filed a petition for a union election despite having signed up a majority of employees at certain locations. Respondent alleges that SEIU is simply trying to harass USSI into losing business by contacting USSI's clients about the Union and engaging in intermittent, unprotected, economic strikes. Respondent contends that SEIU comes to this Court with unclean hands because of its own alleged unfair labor practices and that the delay in prosecuting the charges in the underlying Board proceeding demonstrates that there is no real need for a temporary injunction.

 II. STANDARD FOR TEMPORARY INJUNCTION UNDER SECTION 10(j)

 A. The History Of Section 10(j)

 In the labor field, Congress has determined that labor disputes are to be adjudicated by the National Labor Relations Board, not by a court, and that, when necessary, the Board's orders are to be enforced by the Courts of Appeals. For that reason, the federal courts are generally deprived of jurisdiction to issue injunctions in labor disputes. See Norris-LaGuardia Act, 29 U.S.C. §§ 101-115; McLeod ex rel. NLRB v. General Elec. Co., 366 F.2d 847, 849 (2d Cir. 1966), vacated on other grounds, 385 U.S. 533, 87 S. Ct. 637, 17 L. Ed. 2d 588 (1967). Section 10(j) of the National Labor Relations Act is a narrow exception to the decision by Congress not to give jurisdiction to the courts. *fn2" By this section Congress gave the federal courts the power to grant temporary injunctive relief pending the Board's resolution of an unfair labor practice charge, in order to restore the status quo or to preserve it as it existed before the commencement of the charged unfair labor practices. This authority was provided so that the alleged illegal conduct would not render the labor violations unremediable and make the final resolution by the Board a nullity. Int'l Union UAW v. NLRB (Ex-Cell-O Corp.), 145 U.S. App. D.C. 384, 449 F.2d 1046, 1051 n.25 (D.C. Cir. 1971); McLeod ex rel. NLRB v. General Elec. Co., 366 F.2d at 849. *fn3" Upon the conclusion of the Board's often protracted and time consuming proceedings, a Section 10(j) injunction expires automatically. See Levine v. C&W Mining Co., Inc., 610 F.2d 432, 436-37 (6th Cir. 1979).

 The parties disagree about the correct test to be applied by a District Court in determining whether to issue a temporary injunction under Section 10(j). Petitioner says that the Court must consider: (1) whether the Board has "reasonable cause to believe" that the violations of the NLRA that Respondent has been charged with have been committed; and (2) whether injunctive relief is "just and proper" to preserve the Board's ability to effectively remedy the violations alleged. Respondent says that the Union must meet the traditional test for the grant of injunctive relief in this jurisdiction. The Court agrees with Respondent.

 Section 10(j) provides that, upon the issuance of a complaint charging unfair labor practices by the Board's General Counsel, the Board may petition a United States District Court for appropriate temporary injunctive relief, and the Court may grant such relief "as it deems just and proper." 29 U.S.C. § 160(j). By its terms, Section 10(j) has no "reasonable cause" component. That threshold "reasonable cause" inquiry was adopted by some courts from Section 10(j) of the NLRA, 29 U.S.C. § 160(l), as an additional requirement for a Section 10(j) injunction, but one less onerous than the more traditional likelihood of success on the merits standard. Section 10(l) was enacted at the same time as Section 10(j) and governs situations where a charge has been filed with the Board alleging that one or more specifically enumerated unfair labor practices has occurred. 29 U.S.C. § 160(l). In such cases, the NLRB's Regional Attorney must conduct a preliminary investigation, and "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," the Regional Attorney, on behalf of the Board, is required to seek interim relief from a United States District Court even though no complaint has yet been issued by the Board or its General Counsel. 29 U.S.C. § 160(l) (emphasis added).

 Although there is no similar "reasonable cause" language in Section 10(j), many courts traditionally have incorporated Section 10(l)'s "reasonable cause" standard into their Section 10(j) analysis to determine when a Section 10(j) temporary injunction is appropriate. See, e.g., Frye v. District 1199, Health Care and Social Services Union, Service Employees Int'l Union, AFL-CIO, 996 F.2d 141 (6th Cir. 1993); Arlook v. S. Lichtenberg & Co., 952 F.2d 367, 373 (11th Cir. 1992); Asseo v. Centro Medico Del Turabo, Inc., 900 F.2d 445 (1st Cir. 1990); Kobell v. Suburban Lines, Inc., 731 F.2d 1076 (3d Cir. 1984); Boire v. Pilot Flight Carriers, Inc., 515 F.2d 1185 (5th Cir. 1975), cert. denied, 426 U.S. 934, 49 L. Ed. 2d 385, 96 S. Ct. 2646 (1976). Courts have applied the "reasonable cause" standard to Section 10(j) petitions, rather than the familiar and traditional likelihood of success/balancing of harms test, as a way of acknowledging the legislative judgment that District Courts in Section 10(j) situations, just as in Section 10(l) situations, lack authority to decide the merits of the unfair labor practice charge and to emphasize the judicial view that the processes and judgments of the Board, which has primary jurisdiction over such charges, deserve respect and deference. See Boire v. Int'l Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 479 F.2d 778, 792 (5th Cir. 1973).

 Even apart from this rationale for reading a "reasonable cause" requirement into Section 10(j), Petitioner contends that this Court is bound to apply the two-pronged reasonable cause/just and proper test because it was adopted by the District of Columbia Circuit in Int'l Union, U.A.W. v. NLRB (Ex-Cell-O Corp.), 145 U.S. App. D.C. 384, 449 F.2d 1046 (D.C. Cir. 1971). The Court disagrees with Petitioner's reading of Ex-Cell-O. Our Court of Appeals in that case was concerned with the appropriateness of temporary injunctive relief in a Section 10(e) enforcement action pending the employer's appeal of a Board bargaining order to the appellate court, not a Section 10(j) injunction before the District Court. Explaining that the usual strict standards for equitable relief in private actions do not apply when important public purposes are threatened under the NLRA, the Court, in deciding the request for injunctive relief under Section 10(e), held that the Board was required to show only reasonable cause to believe that the Act had been violated rather than irreparable injury and substantial likelihood of success on the merits. 449 F.2d at 1051. It noted in passing that the same test applied under Section 10(j). Id. It relied for this proposition on NLRB v. Aerovox Corp. of Myrtle Beach, South Carolina, 389 F.2d 475, 477 (4th Cir. 1967). That case, like Ex-Cell-O, also involved Section 10(e) relief, but the Fourth Circuit in Aerovox equated Section 10(e) standards with the Section 10(j) criteria. Int'l Union, U.A.W. v. NLRB (Ex-Cell-O Corp.), 449 F.2d at 1051 n.29. *fn4"

 Because the matter was not before it in Ex-Cell-O, the District of Columbia Circuit specifically declined to declare the proper standard to be applied in a Section 10(j) action: "Whatever the appropriate standard is under § 10(j), temporary relief may be granted under § 10(e) upon a showing that the Board is likely to succeed in enforcing its order, and that interim relief is necessary to achieve the remedial purposes of the Act." 449 F.2d at 1052 n.29. As dictum in a case not involving a Section 10(j) injunction, the discussion of Section 10(j) in Ex-Cell-O is not binding on this Court. All that can fairly be said after Ex-Cell-O is that the District of Columbia Circuit recognizes that some courts apply the reasonable cause/just and proper test when considering a Section 10(j) application. See also Coronet Foods, Inc. v. NLRB, 299 U.S. App. D.C. 82, 981 F.2d 1284, 1286 (D.C. Cir. 1993). In the absence of any authoritative pronouncement by the District of Columbia Circuit, however, this Court is not bound to read "reasonable cause" into the statute and apply the two-part test advanced by Petitioner. *fn5"

 B. Recent Judicial Construction Of Section 10(j)

 Two circuits recently revisited this issue and rejected "reasonable cause" as a criterion for granting a Section 10(j) temporary injunction, adopting instead the traditional test for equitable relief as the analytical framework for applying the only statutory requirement under Section 10(j), a determination of what is "just and proper." See Miller v. California Pacific Medical Center, 19 F.3d 449, 460 (9th Cir. 1994) (en banc) ("likelihood of success is no longer to be equated with 'reasonable cause' . . . nor is it to be measured by whether the factual allegations are not insubstantial and frivolous"); Kinney v. Pioneer Press, 881 F.2d 485, 493 (7th Cir. 1989) ("once the Board seeks injunctive relief under § 10(j), the only question for the court is whether the Board has demonstrated that relief is 'just and proper'"). Two other circuits, while retaining the "reasonable cause" threshold, consider traditional equitable criteria in order to determine whether injunctive relief is just and proper. Asseo v. Pan American Grain Co., Inc., 805 F.2d 23, 26 (1st Cir. 1986); Maram ex rel. NLRB v. Universidad Interamericana de Puerto Rico, Inc., 722 F.2d 953, 958 (1st Cir. 1983); Kaynard ex rel. NLRB v. Mego Corp., 633 F.2d 1026, 1033 (2d Cir. 1980).

 As noted above, while Section 10(j) and Section 10(l) were enacted at the same time, and for the same basic purpose of preventing frustration of the purposes of the NLRA and the Board's processes, see Kinney v. Pioneer Press, 881 F.2d at 488, the two sections operate quite differently and serve different functions. If charges are filed alleging certain enumerated unfair labor violations (such as secondary boycotts and certain illegal picketing), then Section 10(l) directs the Regional Attorney to give preliminary investigation of those charges a priority over other pending investigations. Section 10(l) also expressly requires the Regional Attorney to seek an injunction on behalf of the Board whenever he or she has "reasonable cause" to believe that any of the enumerated labor violations has occurred. In a Section 10(l) situation, the Regional Attorney may not wait until after a charge has been fully investigated and an administrative complaint issued, but must petition immediately for temporary relief. In imposing such a mandatory obligation, Congress both defined when the Regional Attorney's responsibility to seek injunctive relief is activated and set a standard -- "reasonable cause" -- by which the Court asked to grant such relief could measure the Regional Attorney's judgment.

 Section 10(j), on the other hand, permits the Board to pursue interim relief for any violation, but only after the General Counsel of the Board (usually acting through the Regional Attorney) uncovers enough evidence to warrant the bringing of a formal action by issuance of a complaint. The Regional Attorney then decides in his or her discretion whether the case is sufficiently important to call for temporary injunctive relief. Kinney v. Pioneer Press, 881 F.2d at 489. Having given the Board's General Counsel discretion not to issue a formal complaint and the Board's Regional Attorney discretion not to seek a temporary injunction, Congress did not need to set a "reasonable cause" trigger for the Board to act, and it did not do so. See Kinney v. Pioneer Press, 881 F.2d at 489-90; Miller v. California Pacific Medical Center, 19 F.3d at 456. Indeed, "when the Board simply has discretion [whether to seek an injunction] under general section 10(j), we believe the whole panoply of discretionary issues with respect to granting preliminary relief must be addressed by the Court." Maram ex rel. NLRB v. Universidad Interamericana de Puerto Rico, 722 F.2d at 958. For Congress to have required that "reasonable cause" be shown would make no sense under Section 10(j) because the "reasonable ...


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