Douds v. Local 1250, Retail Wholesale Department Store Union
170 F.2d 695
2d Cir.
1948
Check Treatment

*2 HAND, Bеfore AUGUSTUS N. CLARK, FRANK, Judges. Circuit HAND, Judge. AUGUSTUS N. Circuit September 1, 1948, On about Oppen- or Co., Inc., heim Collins & filed an amended charge with the National Labor Relations Board, alleging respondent Local 1250, Department Employees Union, Store engaged practices unfair labor with- mеaning 8(b), (4) Subsection § (C) of the National Labor Relations Act as 23, 1947, amended 61 Stat. 29 U. June 158(b) (4) (C), S.C.A. set forth § margin,1 in that it was inducing, employees Oppenheim Collins & Inc., engage object being to require employer recognize to to or respondent, bargain with although Sep- 1, 1948, tembеr the Board had certified Re- Association, AFL, tail Clerks International organization, another repre- labor ‍‌‌‌​​‌​‌​​​‌‌‌​​‌​​‌​‌​‌​‌​‌​‌‌‌‌‌‌​​‌​​​‌‌​​​‌‌‍as the employees sentative of the under 9 of the § Act, amended, National Labor Relations 159. As a U.S.C.A. for .'its basis cer- § tification, the had found Board after hold- ing majority elig- an election that a of the also 170 F.2d 700. See designated ible voters had the Retail Clerks Shapiro, Neuburger, Rabinowitz & representative employees as the for Boudin, City, Boudin, (Leonard York B. of New purposes bargaining. of collective Aft- Rabinowitz, Seligman, and. Belle Victor Clerks, er the certification of the Retail City, counsel) appel all of New York for investigated charge Oppen- Board lant . Co., Inc., heim and found Collins Denham, Counsel, Robert Gen. charge David P. reasonable cause to bеlieve that the Counsel, Findling, petition injunctive Associate Gen. and A. was true and filed a Somers, Counsel, Asst. pursuant to 10(Z) Norman Gen. § Kuelthau, Dunau, Paul and pertinent S. Bernard portions which are forth set goods, articles, materials, “Sec. commodities any “(b) prac- perform services, an unfair labor It shall be or to ject where an ob- * * * organization tice for labor thereof is: * * * agents— “(C) forcing requiring any employer engage “(4) in, recognize bargain, particular to or to induce or' en- to awith employees courage аny employer organization representative as the labor engage in, employees .organ- a strike or concerted of his another if labor employment repre- of their ization the course been certified as the refusal manufacture, process, transport, use, employees sentative under ” * * * provisions hanále or of section or otherwise work respondent Thereupon, waived dismiss and the margin.2 the District Thereupon why testimony. taking show cause of formal ordered granted; court, preamble the the should not “rea- issued, found that there was to dismiss the which it moved *3 Union that the that” the cause believe” by Board “on the sonable to the and in engaging “acts engaged “over the and jurisdiction without * * * Sub- 8(b), of proceeding in Section subject conduct violation matter of the * * * Act,” pending the 4(C) the and person the section of and over [Un matter, an issued final nion], by adjudication that Section reason of the fact which of injunction, portions the (Z) pertinent Relations of the National Labor fore-, * * * margin.3 the 'quoted in From is ‍‌‌‌​​‌​‌​​​‌‌‌​​‌​​‌​‌​‌​‌​‌​‌‌‌‌‌‌​​‌​​​‌‌​​​‌‌‍unconstitutiоn are the as amended * * * denying the going injunction Article an order being repugnant to and al therefor, the petition the III, 1 and Constitution of to dismiss Sections the motion of that appealed. Amend think the United States to the Fifth We and has appeal. the The court mо- there is no merit in the ment thereto.” denied engaging or strained inducing a from in “Sec. employees any encouraging of charged or the that it is Whenever “(l) Inc., Oppenheim Co., to en- person engaged & labor Collins in an unfair has gage practice meaning рaragraph a refusal in strike or a concerted of within the employment (b), to (4) (A), (B), (0) the their course of section or of transport investigation preliminary or otherwise handle or work such the charge priority of given goods, articles, materials or commod- made forthwith and shall be services, by perform except the or to acts cases ities over all other cases any by or forth or conduct set below of like in the office where character If, like or other acts conduct: is filed or which it is referred. to investigation, or after the (1) Picketing patrolling such officer at or regional attorney matter Co., Inc., to Oppenheim whom & stores of .Collins may to banners, be referred reasonable cause signs, placards, has other or with charge a believe сomplaint is true and that devices, such em- similar to induce seek shall, issue, be should he ployees engage in a or in a- to strike any petition Board, half of district work; refusal to concerted (including the court of the States United (2) circulars, mailing or Distribution for Court of the District handbills, leaflets, ma- or other written any Columbia) of dis District within terial, employees to induce which seeks practice where the unfair trict labor Co., Inc., Oppenheim of gage en- & to Collins question occurred, alleged is to ain strike or in a refusal concerted occurred, person or wherein resides such work; business, ‍‌‌‌​​‌​‌​​​‌‌‌​​‌​​‌​‌​‌​‌​‌​‌‌‌‌‌‌​​‌​​​‌‌​​​‌‌‍appropriate or junctive in transacts for any (3) Visiting the homes of of at pending adjudica relief the final Oppenheim employees & of the the Co., Collins respect tion of the Board tо such with inducing purpose Inc., of for Upon any peti filing maiter. such engage a them to or in con- strike juris tion the district court shall have work; certed refusal to injunctive diction to such relief or threatening (4) Ordering, directing or temporary restraining as it deems employees Oppenheim any of the Col- just any proper, notwithstanding and Co., any Inc., by permitting or lins & * * * provision Upon other law: effect, promising to remain or for the such any filing of such shall courts benefits, purpose any giving them cause notice thereof to be served induсing employees engage such any person charge involved and work; or in a concerted refusal to a strike person, including charging par object an of such strike Or such Where ty, given opportunity ap be shall require is to force conduct acts or Oppenheim ognize pear present by any counsel relevant Co., Inc., & to rec- Collins y : testimon bargain with hereby adjudged representative bargaining It is ordered de collective' adjudication pending Oppenheim employees that creed the finаl Col- by bargain- Inc., of this matter Re National Labor in the collective lins ing Board, respondent by lations Local Re unit covered certain certification Department Union, by tail Labor Relations Wholesale Store the National issued agents, servants, 2-RC-582, CIO, employees, Sep- and its in Case No. dated Board persons attorneys, acting long and all ac as such certifica- tember so participation it, operative tive with concert or be remains in effect. they hereby enjoined are and re- * * * judicial A аrgues determination. ‍‌‌‌​​‌​‌​​​‌‌‌​​‌​​‌​‌​‌​‌​‌​‌‌‌‌‌‌​​‌​​​‌‌​​​‌‌‍respondent Union The justiciable non-judi controversy distinguished was‘exercising is thus District hypotheti- violating dispute Ar from a difference or of a therefore functions and cial character; ul cal or in that the abstract from one ticle III of the Constitution * * * the con academic or contro- to merits of moot. decision timate concrete, versy touch- troversy by the court must be definite and will be made not wit, ing legal having Na ad- body, parties relations an administrative * * * Board, legal deci whose verse intеrests. It must tional Labor Relations admitting subject controversy real to review and substantial sion will specific through of a con- Court, can be tested in the decree District *4 distinguished en from an Appeals character, in of an clusive the course as Court of opinion its support advising law would proceeding. forcement In of what the respondent hypothetical position, argues no case or facts.” that a state of District controversy the existed before supports the This definition view in our III of meaning of Article Cоurt within the at is noticed that the case bar. It to be court a Constitution. It admits that the required controversy court the to be injunction pro may preliminary a justiciable final in iLwas the sense that another jurisdiction tect its or that of own advisory. merely hypothetical nоt to be court, most difficult argues grounds purposes by holdWe that for the of relief Congress is constitution that to understand preliminary injunction action of the the conferring ally from on a court precluded District Court was final. jurisdiction to to an admini lend aid apparеnt quite Secretary It is that the of attempted body, Congress to. do strative Agriculture of was aided in the exercise Labor Relations 10(1) in of the National § Court, jurisdiction Supreme his when the Act States, holding Morgan after in v. United arguments. no can see basis for We 906, 468, 298 U.S. 56 80 L.Ed. S.Ct. dispute resоlved under the Here a to be was Id., 1, 773, 1129, 304 U.S. 58 S.Ct. 82 L.Ed. did not provisions the statute. It direct of hearing that not a full been accorded to dispute the ultimate cease to be a because stockyard charged with col- certain owners on the merits would not rest with decision rаtes, lecting further decided in excessive A contention was made court. similar the Morgan, 183, 59 307 v. U.S. Appeals of the Seventh in the Court 795, 1211, alleged 83 L.Ed. that S.Ct. the Federal Trade Commission v. Circuit in overcharges should in be retained the cus- 516, Thomsen-King 109 but was F.2d tody pending of the District Court the rе- rejected In Inter- by that court. Evans v. adequate hearing. sult new It of a Union, Typographical D.C.S.D. national stage tois be noted that liti- at this Ind., F.Supp. 881, Judge Swygert dealt 76 gation an there was no review pending of granted pre- contention and like with a administrative and that such an order injunction Labor Board liminary to the un- was to based future administrative provisions practically are indis- which der hearings. See also United Mor- States v. 10(1). those in tinguishable from Section 999, gan, 409, 313 61 U.S. S.Ct. 1429, opinion by Mr. Frankfurter. appellant’s Justice contention coun The by opin any way aided the In Interstate Commission that in Commerce sel he is v. 447, 1125, Hughes Brimson, in 154 14 Life U.S. S.Ct. 38 L. ion Chief Aetna Justice Hartford, Conn., 1047, argued that Co. of v. Ha Ed. was the issuance Insurance 461, 464, subpoena 227, investigation in worth, 57 S.Ct. 81 of an 300 U.S. aid L. 1000, 617, interpreted judicial 108 ICC was not a function. the Ed. A.L.R. But rejectеd argument by Supreme limits of the De was the constitutional Federal the claratory Judgment is unsound. Commerce Commission v. [Interstate Brimson, supra, U.S., page 154 at was not there was contention page controversy. A dealing a case or S.Ct. at similar result was with This 1137]. Corporation and a reached in case or con Endicott contention was overruled Johnson Perkins, ‘controversy’ “A 63 S.Ct. defined thus: U.S. troversy is appropriate Publishing that Oklahoma must be one Press this sense Co. v. Walling, L. prelimi- miss granting 327 U.S. the S.Ct. injunction nary Ed. these 166 A.L.R. In none of is affirmed. urged argument cases was the constitutional CLARK,

before us sanctioned courts. by Judge (concurring). Circuit agree I there is no merit injunc argued It if is also am, appeal. how- taken for the I granted final, was ever, scope in- much troubled deprived process of due because there entered; junction actually this matter merits, hearing on re no which still concern, purely affecting gen- local to be main determined Board. Such strikes, public eral do railroad coal might any prelimi a criticism be made of form, we an of the broadеst injunction, nary whether in aid of suit prohibiting, among things, per- other “all pending in the court the motion where acting sons participa- active concert made, court, or in admini another “engaging tion with” the union from present case, strative tribunal. In “visiting strike” or at the homеs complaint District Court on the acted employees” charging party en- op the Board which the had an gage in a Before recent Act etc. portunity to meet if it chose. In the face *5 injunctions appear quite such to have been right allega of its waiver of the to meet clearly objectionable;1 Act itself cause, showing probable tions can there preserves quit rights explicitly some no merit process. claim of lack of due work, express views, or disseminate ar- further contention made guments, opinion, while and to injunction that the order is invalid because only it directs the court tem- unsupported by findings of fact under Rule porary restraining order as the 52(a), Procedure, Federal Rules of Civil proper.” just court “deems 29 U.S.C. 28 only But the U.S.C.A. 143, 158(c), (j,k), 160 A. 163. Never- §§ the decision attacked ‍‌‌‌​​‌​‌​​​‌‌‌​​‌​​‌​‌​‌​‌​‌​‌‌‌‌‌‌​​‌​​​‌‌​​​‌‌‍court on con gainsaid cannot Act theless it right stitutional and has waived'its does put the federal courts far into task allegations complaint, to meet the strikes, terminating it is perhaps which therefore procedurally admit stood greatly worth while fоr an intermediate findings ted. The absence of was not up try to dress the details of an non-jurisdictional opinion defect [see am, own motion. Hence I Clark, J., Vogel, Cir., in Rossiter reluctantly, concurring in somewhat this 292], findings requisite F.2d were not result, appears although, acсom- where no issue of fact existed. Fontes v. case, panying I do think should Porter, Cir., 156 F.2d 956. right court review these For foregoing reasons, matters without and cumulative pen- order of drastic denying the court below against motion to it. dis- alties Bakery Pastry Help Carpenters America, See Drivers & & Joiners Union of Cafe, ers Local 802 of International Brother v. Ritter’s Local 213 U.S. Wohl, hood 774, 775, Teamsters v. 315 U.S. 62 S.Ct. 62 S.Ct.