668 F.2d 678 | 2d Cir. | 1982
This appeal concerns the appropriateness of a District Court’s temporary injunction permitting interior picketing within an office building while the National Labor Relations Board considers the lawfulness of such conduct. 40-41 Realty Associates, Inc. (“Landlord”), and Drs. Paul Cohen and Julius Berkowitz, a partnership doing business as Group Health Dental Facility, appeal from an order of the District Court for the Southern District of New York (Constance Baker Motley, Judge) granting the petition of the Regional Director of the National Labor Relations Board for a temporary injunction under section 10(j) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(j) (1976). For the reasons that follow we conclude that the injunction should not have been issued.
The present controversy arose after unsuccessful attempts to negotiate a new collective bargaining agreement between the Dental Facility and the Amalgamated Dental Union, Local 38-A, SEIU, AFL-CIO,
When a District Court is presented with a petition for an injunction under section 10(j), the Court’s task is two-fold: it must determine whether there is reasonable cause to believe that the Act has been violated, and, if so, whether the requested relief is “just and proper.” Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047, 1051 (2d Cir. 1980). We believe that a section 10(j) injunction in this case was not “just and proper” relief for several reasons. Preliminarily, we note that although section 10(j) is an exception to the Norris-LaGuardia Act’s limitation upon federal court jurisdiction to issue injunctions in labor disputes, see 29 U.S.C. §§ 101, 104-105, 107 (1976), it
in no way changed the extraordinary nature of the injunctive remedy. Nor did it change the basic purpose of the NLRA which envisaged a system in which the Board would, in the first instance, consider and decide the issues arising under the Act and pending before it, subject to later review by the Courts of Appeals.
McLeod v. General Electric Co., 366 F.2d 847, 849 (2d Cir. 1966), vacated as moot, 385 U.S. 533, 87 S.Ct. 637,17 L.Ed.2d 588 (1967) (per curiam). Furthermore, in this Circuit general equitable principles apply in deciding the propriety of a temporary injunction issued under section 10(j). See Danielson v. Joint Board of Coat, Suit & Allied Garment Workers’ Union, 494 F.2d 1230, 1242 (2d Cir. 1974); McLeod v. General Electric Co., supra, 366 F.2d at 850. This reluctance to grant injunctive relief is illustrated by the refusal of the Court in McLeod v. General Electric Co., supra, to grant an injunction in part because the issue in the case was a difficult one that had not been considered by any court; in General Electric we preferred to leave the decision on the alleged unfair labor practice to the Board for resolution, rather than to interfere with the administrative design by granting the injunction. See McLeod v. General Electric Co., supra, 366 F.2d at 849-50.
These considerations have special force in a case such as this involving an unprecedented application of the Act. Neither the Board nor any court has ever construed the Act to permit interior picketing in the corridors of an office building. While Regional Counsel calls our attention to three cases upholding the right to picket on private property, each of them involved an area of considerable public coming and going. In Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), picketing occurred inside a large shopping mall. In Seattle-First National Bank v. NLRB, 651 F.2d 1272 (9th Cir. 1980), the picketing site was an area outside the entrance to a large restaurant located on the forty-sixth floor of an office building. In Eisenberg v. Holland Rantos Co., 583 F.2d 100 (3d Cir. 1978), the pickets stood on a street inside an industrial park. All of those locations,
We recognize that sound administration of the Act requires appropriate deference to the expertise of the Board, see NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1149, 10 L.Ed.2d 308 (1963); McLeod v. General Electric Co., supra, 366 F.2d at 850 (“this Court’s decision on the ultimate proposition of law will be better based after the Board has applied its fund of knowledge to the problems involved”), and some degree of deference is warranted when the Regional Director seeks an injunction under sections 10(j) and 10(7 )
However, when the Regional Director asks a court to fashion a section 10(j) injunction to permit interior picketing in an office building corridor, he inverts the traditional relationship between administrative agency and court: the court is asked to make the initial ruling as to the propriety of a novel and unprecedented application of the statute, and thereafter the Board will apply its expertise to the issues presented.
Finally, we note that a section 10(j) injunction, even in a relatively settled area of the law, is appropriate when there have been flagrant violations of the Act or there
The injunction is vacated.
. On July 14, 1981, a panel of this Court stayed the injunction pending appeal. In the interim, an Administrative Law Judge has ruled that the Union is entitled to picket at the entrance to the Dental Facility on the second floor.
. Section 10(j) gives the Board the power to petition a district court for an injunction once a complaint alleging an unfair labor practice has been issued. Section 10(f) requires the Board to petition for an injunction whenever certain unfair labor practices are the subject of the complaint. See Danielson v. Joint Board of Coat, Suit & Allied Garment Workers’ Union, 494 F.2d 1230, 1241-2 (2d Cir. 1974).
. In Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047 (2d Cir. 1980), we approved the grant of an interim bargaining order as part of the section 10(j) relief. Although an interim bargaining order is an unusual remedy, it is not an unprecedented one. See id. at 1054-55.
. The ultimate issue on the merits will be a close question. In Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), the Supreme Court stated that the NLRB must seek the proper accommodation between employees’ section 7 rights and private property rights; this proper accommodation, which depends on the content of the section 7 rights and the context in which they are asserted, “ ‘must be obtained with as little destruction of one as is consistent with the maintenance of the other.’” Id. at 521, 96 S.Ct. at 1037 (quoting NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1956)).