Kinney ex rel. National Labor Relations Board v. International Union of Operating Engineers, Local 150
Kinney ex rel. National Labor Relations Board v. International Union of Operating Engineers, Local 150
Opinion of the Court
The district court has enjoined Local 150 of the International Union of Operating Engineers, AFL-CIO, from holding a mass trial to discipline some fifty-three members who, the Union claims, crossed picket lines during a strike. 786 F.Supp. 1431. The National Labor Relations Board (“Board”)
I.
This disagreement between the Union and its membership has a curious twist in that the employees who allegedly crossed picket lines work for the competitor of the company targeted by the strike. The strike, from October 12 to October 18,1991, was aimed at Edward C. Levy Co. (“Levy”), which is located on the same premises as the Heekett Division of Harsco Corp. (“Heekett”). The employees accused of violating the picket line work for Heekett. Both firms are slag processors; that is, they reclaim a waste product in the manufacture of steel. As raw materials are converted first to pig iron and then to finished steel, a waste product is drawn off in molten form, cooled until it hardens, broken up, scavenged for metals, and disposed of; this is slag. Levy and Heekett are subcontractors for the processing and disposal of slag at LTV Indiana Harbor Works (“LTV’), a steel manufacturer which owns the plant in East Chicago, Lake County, Indiana, that is at the center of this dispute.
When the Union went on strike against Levy, Heekett employees were obliged to continue working under a separate collective bargaining agreement good through the end of September 1995. According to that agreement, “[tjhere shall be no strikes, work stoppages, slow down, interruption, or impeding of work during the period of this Agreement” (defendant’s app. at 3). The LTV plant is large — some 5,000 workers on 1,150 acres— and has three entrances. Ordinarily, two entrances are used for employees and one for contractors. As in a previous labor dispute, the companies designated one entrance to serve the struck firm exclusively, here Levy. The other two gates were reserved for LTV and its outside contractors, including Heek-ett, and signs posted at the various gates warned that all traffic related to Levy was required to use the Levy entrance. This so-called reserved gate system was intended to allow Heekett, LTV and all others at the plant to go about their business normally without having to cross picket lines. Use of a reserved gate system is common where employers share a site but only one is experiencing labor strife, and is designed to keep neutral parties from being dragged into the dispute. Mautz & Oren, Inc. v. Teamsters, Chauffeurs, And Helpers Union, Local No. 279, 882 F.2d 1117, 1122 (7th Cir. 1989).
According to testimony before the district court, an LTV representative approached Union officials on October 12, the first day of the strike, and told them to picket only at the Levy entrance. The Union’s picket captain allegedly responded that he had been instructed to picket each of the three gates, and that the Union intended to disrupt the work of all contractors at the East Chicago site, not just Levy. Indeed, the Union continued to post placard-bearing workers at the three entrances to the facility. Local 150 now claims that it was never told of the
During the strike some fifty-three Heckett employees entered the Indiana Harbor Works plant through the two gates designated for non-Levy traffic. Local 150 filed internal Union charges against some of them on October 14, 1991, or the third day of the strike. The Union then scheduled a “mass trial” for the Heckett workers for December 12, 1991 (defendant’s app. at 7). According to testimony in the district court, a Union member who is found guilty in such a proceeding may be fined as much as $5,000 and expelled from the Union. A worker booted out of the Union may also lose her job because a “top card” issued by Local 150 is required to run certain Heckett equipment. A censured employee is able to appeal a sanction to the International Union only after paying the fine. As a consolation prize, members who lose their top cards and then-jobs may still pay a fee and get on the Union’s out-of-work list while they appeal their punishment.
The atmosphere between Local 150, Levy, and Heckett’s employees during the strike was poisonous. Several Heckett workers filed charges with the Board against their Union. One of these testified in district court that his tires were slashed and his family threatened. And a Union newsletter bitterly castigated Heckett employees who honored their contract and continued to work:
I cannot think of a defense for these guys. Had the situation been reversed, they would have expected a show of support from their fellow Union members. The strike was supported by union members of other trades, but not by members of 150, the trade involved. What an embarrassment they are to the remaining thirteen thousand some hundred members of Local 150!!!! EVEN THE NON UNION RAT IS BETTER THAN THEY ARE. AT LEAST YOU KNOW WHERE THE NON UNION RAT STANDS * * *.
(defendant’s app. at 8). On October 15,1991, the fourth day of the strike, LTV and Heck-ett filed charges with the Board against the Union for engaging in unfair labor practices within the National Labor Relations Act, 29 U.S.C. §§ 158(b)(4)(f) and (ii)(B) (the “Act”).
II.
The threshold question in this case is what standard district courts should apply in deciding whether to issue injunctions to halt arguably unfair labor practices. The answer depends on what kind of behavior is being enjoined. In this instance, the Board alleges that Local 150 engaged in an illegal secondary boycott against Heckett and LTV. The National Labor Relations Act makes it illegal to “threaten, coerce, or restrain” one company with the object of putting pressure on a second company not otherwise involved in a strike. 29 U.S.C. §§ 158(b)(4)(i) and (ii)(B). We presume, although the presumption may be rebutted, that if a union pickets a neutral gate, it is attempting a secondary boycott. Mautz & Oren, 882 F.2d at 1122. And a union may not discipline members who cross a picket line to work for a neutral employer. NLRB v. United Ass’n of Journeymen, 827 F.2d 579, 580 (9th Cir. 1987).
Section 10(£) of the Act compels a regional director to seek an injunction on the Board’s behalf when she has reasonable cause to believe that a secondary boycott has occurred or is occurring. 29 U.S.C. § 160(i);
For the meaning of “just and proper” we need look no further than Pioneer Press, 881 F.2d at 490 n. 3, where we held that with this language Congress commanded courts to apply a traditional equity analysis under section 10(j) of the Act.
It had been the prevailing view among judges on this Court that the standards for issuing injunctions under sections 10(j) and 10(Z) were the same. Id. at 743-744. However, our decision in Pioneer Press overturned Meat Workers and several like cases in one respect: 10(j) does not require the Board to show reasonable cause before seeking an injunction. Pioneer Press reasoned that 10(j), unlike 10(Z), does not contain any language about cause, reasonable or not. Pioneer Press, 881 F.2d at 493. The Board now argues that since the standards for 10(j) and 10(Z) injunctions are different in one respect — reasonable cause is not required in 10(j) — they must be different in every respect. Yet at no point in Pioneer Press did we suggest that the omission of the phrase “reasonable cause” in 10(j) makes it the polar opposite of 10(Z), or that words which mean one thing in 10(j) must mean something else in 10(l). In general, we may logically assume that when Congress uses the same key phrase in two provisions of one statute, lawmakers intended the words to have the same meaning. The Board is at a loss to explain why the invocation of “just and proper” in one clause should require the determined application of equitable principles while use of the same phrase in another clause requires a district court to engage in no inquiry at all.
Yet no decision cited by the Board, and no decision of which we are aware, has applied the more lenient public interest test to any governmental agency except the Federal Trade Commission (“Commission”). See, e.g., Elders Grain, 868 F.2d at 903; World Travel Brokers, 861 F.2d at 1028; FTC v. Warner Communications, Inc., 742 F.2d 1156, 1165 (9th Cir. 1984); American Motorcyclist Ass’n v. Watt, 714 F.2d 962, 965 (9th Cir. 1983); FTC v. Weyerhaeuser Co., 665 F.2d 1072, 1083 (D.C.Cir. 1981); FTC v. Simeon Management Corp., 532 F.2d 708, 713-714 (9th Cir. 1976). Indeed, opinions considering injunctions requested by the Board frequently discuss irreparable injury, which suggests that these coui’ts are applying the traditional four-prong test. See, e.g., Maram, 122. F.2d at 958-960; Eisenberg for and on Behalf of NLRB v. Hartz Mountain Corp., 519 F.2d 138, 142 (2d Cir. 1975). The legislative history of the FTC Act, 15 U.S.C. § 53(b), also makes clear that Congress intended to exempt the Commission from the usual requirements of the traditional standard. World Travel, 861 F.2d at 1028-1029. Indeed, there are cogent reasons for easing the burdens on the Commission that are absent in the Board’s case. For example, a court that fails to halt a merger while its anti-competitive implications are contemplated by the Commission may find it quite difficult to later untangle the amalgamation. Elders Grain, 868 F.2d at 904.
Besides the fact that no precedent leans in the Board’s favor, we think it important that the Board continue to meet the traditional test for two reasons. First, if the public interest test were to spread from the FTC to the NLRB, it would in short order be unleashed upon the rest of the government as well. Second, we are convinced that district judges would read our adoption of the public interest test as a directive to relax the standards for granting injunctive relief to government agencies. And although the traditional test is itself quite flexible — “the district judge has to arrive at a decision based on a subjective evaluation of the import of the various factors and a personal intuitive sense about the nature of the ease,” Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1436 (7th Cir. 1986) — injunctive relief still represents an exercise of “very far-reaching power.” Warner Bros. Pictures, Inc. v. Gittone, 110 F.2d 292, 293 (3d Cir. 1940). It is an extraordinary tool because it injects the legal system into disputes before a full airing of the facts and a careful consideration of the law, and mistakes can be costly. Lawson, 782 F.2d at 1433.
There is simply no good reason to depart from the traditional test in Board petitions for injunctive relief. We hold, therefore, that before issuing a 10(Z) injunction, the district
III.
In this instance, the regional director had reasonable cause to believe the Act had been violated, and has some likelihood of prevailing on the merits. Since these inquiries are similar, we may consider them together.
As noted above, labor law is vigilant against boycotts aimed at neutral or “innocent” employers merely as a means to increase costs on a primary employer. See, e.g., Graphic Arts I, 513 F.2d at 1022. The Act represents a decision by Congress that neutral employers cannot be dragged into someone else’s labor dispute. FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411, 428, 110 S.Ct. 768, 778, 107 L.Ed.2d 851 (1990). See NLRB v. Retail Store Employees Union, Local 1001, Retail Clerks Intern. Ass’n, 447 U.S. 607, 616, 100 S.Ct. 2372, 2378, 65 L.Ed.2d 377 (1980). Union protocol does not generally require that workers refuse to enter a work site where the site is only being picketed at another entrance, Mautz & Oren, 882 F.2d at 1122, but the neutral gate must not be used by people whose work is directly related to the primary employer’s normal business. United Steelworkers of Am. v. NLRB, 376 U.S. 492, 498-499, 84 S.Ct. 899, 903-904, 11 L.Ed.2d 863 (1964). Therefore, we make a rebuttable presumption that a Union which pickets a neutral site intended an illegal secondary boycott. Mautz & Oren, 882 F.2d at 1122.
The parties do not dispute that the Union picketed all entrances to the Indiana Harbor Works plant. Since two of those gates were reserved for neutral traffic, we must presume that the Union intended to draw Heck-ett and LTV into the strike. The Union has two possible escapes from the law’s clear disdain of secondary boycotts. The first is to argue that it was unaware of the reserved gate system; hence the Union’s contention that the signs were not visible to the picketers. The district judge, however, found that the Union’s claims of ignorance were not credible, and we are not at liberty to challenge this factual determination. It also seems unlikely that the company would go to the expense of this litigation if the whole matter had really been a misunderstanding. If these workers did not actually cross a picket line, why does the Union continue in its efforts to discipline them? Nor is it likely that Union workers could be camped out at three entrances for over a week without realizing one gate was reserved for Levy traffic.
The Union’s second means of escape is to argue that it should be exempt from the ban on secondary boycotts because the second
Since the district judge had reasonable cause to believe Local 150 violated the Act and that petitioner has some chance of succeeding on the merits, we must consider the balance of the traditional equity requirements before concluding that an injunction was “just and proper.” Though this inquiry provides a formula for deciding whether an injunction shall issue, it is not to be applied mathematically, and “a formula is not a substitute for, but an aid to, judgment.” Lawson Products, 782 F.2d at 1434.
The second prong of the test asks whether Heckett and its employees, represented by the petitioner, have an adequate remedy at law and whether they would suffer irreparable injury in the absence of injunctive relief. Martin v. Helstad, 699 F.2d 387, 389 (7th Cir. 1983); Roland Machinery, 749 F.2d at 386. Local 150 seeks to discipline fifty-three Heckett employees and, quite possibly, force them out of their jobs. Although the Union claims this harm is theoretical because no one has ever been stripped of a top card before and thus removed from a job, this argument is unconvincing. If the Union retains the power to deprive workers of their livelihoods, we may not blithely assume that the Union will fail to exercise that power even if it has not done so before. Here the workers seek not only damages for loss of their positions, but assurances that they will not be fired at all. See Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2d Cir. 1970) (“the right to continue a business * * * is not measurable entirely in monetary terms; the Semmes want to sell automobiles, not to live on the income from a damages award”). We have held that a remedy of damages is inadequate if, among other things, it comes too late, if the plaintiff cannot finance a lawsuit without revenues that will be lost absent an injunction, or if damages are difficult to calculate. Roland Machinery, 749 F.2d at 386. Loss of job raises each of these concerns. It is obvious that few unemployed workers have enough money to bring their claims to the legal system. Loss of income is usually easy to calculate, but discerning the other terrible personal costs of being unnecessarily unemployed is impossible. In this sense the harm is also irreparable. Although the law frequently attempts to make whole individuals who have been fired, we needn’t assume falsely that those who are laid off may simply resume their careers as if they had not been interrupted. Id.
The third and fourth equitable inquiries— whether the threatened injury to petitioner outweighs the threatened harm an injunction would inflict on defendant, and whether an injunction would serve the public interest— may be considered together. Martin, 699 F.2d at 392. Local 150 claims that morale will suffer if it cannot punish members seen as scabs. If members are free to ignore picket lines, so the argument goes, there is no reason any individual should suffer the deprivations of a strike and union solidarity will crumble. This argument would be more persuasive if those who entered the facility by the neutral gate worked for Levy rather than Heckett. Recall that the Heckett workers were not on strike; they were obligated to continue working under a contract signed by this very Union. Local 150’s argument
Congress, acting on behalf of the public, has unambiguously denounced secondary boycotts. Protecting workers torn between loyalty to their Union and a legal commitment to continue showing up for work seems an apt use of the extraordinary power of the equitable remedy. For the foregoing reasons, the injunction imposed by the district court is affirmed.
. Unless otherwise noted, references to the Board also include the petitioner, Elizabeth Kinney, the regional director who represents the Board's interests in this matter.
. The district court's findings of fact are presented in the somewhat odd format of restating what witnesses said at trial. Thus it is not clear if the court adopted these statements as true. For a variety of reasons, we believe that the district court did adopt this testimony as an accurate reflection of what happened. First, all of these statements are in a section of the opinion labeled "FINDINGS OF FACT” and which begins with the statement, "The Court hereby finds that: * * Second, the court quoted testimony selectively. Judge Lozano, for example, cited testimony from an LTV official that he told Union employees about the reserved gate system (defendant's app. at 6), but the court did not mention the Union's denial of such knowledge. Third, the judge's issuance of an injunction would make no sense at all if he had not made a factual finding that the Union's members were cognizant that a reserved gate system was in place.
. Relevant portions of 29 U.S.C. § 158(b) provide that it shall be an unfair labor practice for a labor organization or its agents:
[b](4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
(ii)(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees * *: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing * * *.
. Section 10(/) provides:
Whenever it is charged that any person has engaged in an unfair labor practice * * *, the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. If, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall; on behalf of the Board, petition any United States district court within any district where the unfair labor practice in question has occurred, * * * for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law.
. The Regional Director criticizes the district judge for relying on a five-prong rather than the traditional four-prong test. Judge Lozano, however, merely separated irreparable injury from the requirement that the Board have no adequate remedy at law. Although described in the cases as a four-prong test, it actually does involve five (if not more) factors unless irreparable injury and no adequate remedy mean the same thing. Roland Machinery Co. v. Dresser Industries, 749 F.2d 380, 383 (7th Cir. 1984). We have held that where the only damages sought are monetary, these two prongs merge and the test actually involves only four prongs. Id. at 386. Where permanent equitable relief is sought, the irreparable injury requirement is intended to thwart temporary injunctions in cases where a legal remedy is insufficient but relief can wait until the end of the trial. Id. In this instance, where injunctive relief is the ultimate goal, the petitioner must show both irreparable injuiy and no adequate remedy at law. For consistency’s sake, though, we will continue to refer to the traditional test in equity as a four-prong test.
. Section 10(j) provides:
The Board shall have power, upon issuance of a complaint as provided in subsection (b) 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 or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.
. Petitioner implies that to read "just and proper" as requiring a traditional equitable analysis is a departure from earlier decisions. Not so. We have never expressly considered the meaning of "just and proper” in section 10(/) and, indeed, have frequently engaged in the kind of searching equitable analysis discussed by Pioneer Press in the context of 10(j) and 10(Z) injunctions, even if those analyses were not labeled as "just and proper" inquiries. See, e.g., Squillacote v. Graphic Arts Int'l Union (GAIU), Local 277, 513 F.2d 1017, 1022 (7th Cir. 1975) (“Graphic Arts I") (discussing the irreparable harm to a company in terms of the urgency of issuing an injunction).
. Pioneer Press gives conflicting signals about which test to apply. At one point the opinion says “[s]ection 10(j) tells the district court to do what's 'just and proper’, which we read as a statement that traditional rules govern — the approach emphasizing the public interest when the government is the plaintiff." 881 F.2d at 491. Elsewhere the opinion states that a party, before securing an injunction, must demonstrate "(i) no adequate remedy at law, (ii) irreparable harm ® * *, (iii) a reasonable likelihood of winning on the merits, and (iv) harm to the public interest * * Id. at 490 n. 3. This, of course, is the traditional test.
. One could argue that the reasonable cause requirement and the analysis under "just and proper" are redundant because, obviously, one doesn’t have much chance of winning on the merits if no reasonable cause for seeking an injunction existed to begin with. However, the statute directs the regional director to satisfy the reasonable cause standard, while courts are directed to satisfy the “just and proper" standard. Judges have taken up a reasonable cause analysis under 10(1) not to satisfy the mandate of Congress but as a convenient threshold requirement — it stands to reason that if the Board through its regional director cannot establish reasonable cause, it is unnecessary to embark on the more involved inquiry required to find that an injunction is "just and proper.” In a case such as this where the petitioner has some likelihood of prevailing on the merits, a court may consider this together with reasonable cause.
Reference
- Full Case Name
- Elizabeth KINNEY, Regional Director of Region 13 of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 150, AFL-CIO
- Cited By
- 3 cases
- Status
- Published