A. Standards for Relief under Section 10(j).
Section 10(j) of the National Labor Relations Act
provides for temporary injunctive relief pending final disposition of an unfair labor practice charge before the NLRB upon a showing that the NLRB's regional director has reasonable cause to believe that a violation of the Act as charged has been committed and that such relief is "just and proper." Eisenberg v. Hartz Mountain Corp., 519 F.2d 138, 141, 89 LRRM 2705, 2707 (3d Cir. 1975); Boire v. Pilot Freight Carriers, Inc. 515 F.2d 1185, 1188-89, 89 LRRM 2908 (5th Cir. 1975); Angle v. Sacks, 382 F.2d 655, 661, 66 LRRM 2111 (10th Cir. 1967).
The legislative history of section 10(j) and its companion, section 10 (l)
- the so-called mandatory injunction section - expresses congressional concern for "the prompt elimination of the obstructions to the free flow of commerce and encouragement of the practice and procedure of free and private collective bargaining" pending the outcome of the often necessarily lengthy Board hearing, order, and enforcement procedures. S. Rep. No. 105, 80th Cong., 1st Sess. 8 (1947); 1 Legislative History of the Labor Management Relations Act of 1947 at 414.
A major purpose is to grant relief where "substantial injury" might otherwise be likely to occur, recognizing that "it has sometimes been possible for persons violating the act to accomplish their unlawful objective before being placed under any legal restraint and thereby to make it impossible or not feasible to restore or preserve the status quo pending litigation." S. Rep. No. 105, supra, at 27 (1947); Legislative History, supra, at 433.
The district court is granted a limited evidentiary role in the section 10(j) proceeding, because the court is to determine only whether the reasonable cause and "just and proper" standards have been met, and it is not to determine which party should ultimately prevail. NLRB v. Acker Industries, Inc., 460 F.2d 649, 652, 80 LRRM 2364 (10th Cir. 1972); Angle v. Sacks, supra; accord, Balicer v. International Longshoremen's Ass'n., 364 F. Supp. 205, 216, 84 LRRM 2280 (D.N.J.), aff'd 491 F.2d 748, 86 LRRM 2152 (1973)
Generally, evidence favorable to the petitioner is to be accepted so long as it lies within the range of rationality, and where various inferences may reasonably be drawn from those facts, the inference more favorable to petitioner should be drawn, see Danielson v. Joint Board, ILGWU, 494 F.2d 1230, 1245, 85 LRRM 2902 (2d Cir. 1974).
Some caution must be exercised, however, before the rationale of the section 10 (l) mandatory injunction cases may be applied automatically to the instant section 10(j) situation. This is because the applicability of section 10 (l) is limited to illegal organizational or jurisdictional strikes, secondary boycotts and hot cargo contracts, with which we are not here concerned.
Speaking of section 10 (l), Judge Hastie stated, "In its nature any such conduct impinges directly upon the public interest in the free flow of commerce," in contrast to conduct addressed under section 10(j) wherein disruption of commerce is not necessarily implicated. Eisenberg v. Hartz Mountain Corp., supra, 519 F.2d at 141, 89 LRRM at 2707.Thus a district court might properly exercise its discretion to refuse injunctive relief in a non-disruptive section 10(j) situation, even if the petitioner demonstrates the arguable presence of the elements of the unfair labor practice as charged, if the court is unconvinced that such relief is "just and proper" in terms of the public interests to be served by the Act. Id. at 142, 89 LRRM at 2707.
We find nothing in the legislative history which suggests that section 10(j) relief is to be freely granted upon the mere finding of probable cause that an unfair labor practice has occurred; Congress instead mandated a case-by-case balancing of the circumstances in section 10(j) cases to maximize the probability that such relief if granted will advance or protect the public interest without harming an important countervailing public policy prior to a final decision on the merits. The care with which this weighing should be made, in the absence of disruption of commerce, was alluded to by the Third Circuit in Eisenberg v. Hartz Mountain Corp., supra, 519 F.2d at 141, 89 LRRM at 2707, wherein the court stated:
Section 10(j), different from Section 10 (l), creates jurisdiction to grant "just and proper" temporary relief pending Board decision upon any unfair labor practice charge, even though no disruption of commerce is charged. Thus, the exigencies of determining what relief, beyond enjoining disruption of commerce, is "just and proper" are likely to be of critical importance when relief is sought under Section 10(j)....
The petitioner's legal theories interpreting the Act are to be afforded great deference by the district court; the NLRB is expert in administration of the complex statute, while district courts seldom encounter the Act. This acceptance of the petitioner's legal position is especially broad in the case of section 10(1) temporary injunctions, where the court is bound to accept the petitioner's theory so long as it is "substantial and not frivolous." Samoff v. Building & Construction Trades Council, 475 F.2d 203, 207, 82 LRRM 2790, 2793 (3d Cir.), vacated for mootness, 414 U.S. 808, 84 LRRM 2421, 38 L. Ed. 2d 44, 94 S. Ct. 151 (1973); Hirsch v. Building & Construction Trades Council, 530 F.2d 298, 302-303, 91 LRRM 2438 (3d Cir. 1976).
The purpose for such great deference toward the petitioner's legal theories in section 10 (l) cases lies partly in the inherent disruptiveness of the strikes and boycotts to which that subsection is alone applicable. The role of the district court in section 10 (l) cases "reflects the congressional determination that certain unfair labor practices are so disruptive that where there is reasonable cause to believe that they are being engaged in their continuance during the pendency of charges before the Board should not be permitted." Schauffler v. Local 1291, International Longshoremen's Ass'n., 292 F.2d 182, 187, 48 LRRM 2434, 2437 (3d Cir. 1961), quoted in Samoff, supra, 475 F.2d at 206-207, 82 LRRM at 2792-2793. Again, the section 10 (l) rationale does not necessarily apply with the same force in the non-disruptive instant section 10(j) proceeding.
Nonetheless, in considering whether the petitioner had reasonable cause to believe that the respondent has committed an unfair labor practice, this court will give broad deference to the legal theories advanced by the petitioner to construct the elements of its prima facie charge of an unfair labor practice. To require that the alleged unfair labor law might frustrate the congressional intent of preventing the compounding of an arguable unfair labor practice, during the period of time required by the Board for final determination of the legal as well as factual issues. The making of fine legal distinctions to resist or revise the petitioner's theory has no place in the consideration of whether the petitioner's legal theory is "substantial and not frivolous," Samoff v. Building & Construction Trades Council, supra, even in the case of the relatively non-disruptive conduct addressed under section 10(j).
We first consider whether the petitioner, under a substantial legal theory, has reasonable cause to believe that respondent's refusal to recognize Local 170 is violative of the Act.
B. Refusal to Recognize and Bargain under Sections 8(a)(1) & (5).
1. Prima facie case
Respondent Pick-Mt. Laurel is a successor employer which acquired the hotel- restaurant facilities preserving the essential nature of the operations and retaining a majority of the employees in the relevant positions. A successor employer has the duty to recognize and bargain with an incumbent union which has been certified as the bargaining representative for the appropriate employee unit. NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 281, 80 LRRM 2225, 32 L. Ed. 2d 61, 92 S. Ct. 1571 (1972).
The NLRB urges that the duty to recognize an incumbent union exists not only in the case of a union which had been certified subsequent to a free election by the employees, as in Burns, supra, but also where a contract was negotiated after voluntary recognition by the employer's predecessor, as in Eklund's Sweden House Inn. Inc., 203 NLRB 413, 83 LRRM 1173 (1973) and in Barrington Plaza & Tragniew, Inc., 185 NLRB 962, 75 LRRM 1226 (1970), enf. denied in part sub nom. NLRB v. Tragniew, Inc., 470 F.2d 669, 81 LRRM 2336 (9th Cir. 1972). In both of these cases, however, there was strong evidence of majority support for the incumbent union either through unanimous employee ratification of the most recent collective bargaining agreement (Sweden House), or through a history of union representation under a series of collective bargaining contract negotiations and renewals (Barrington Plaza).
In the instant case, the predecessor employer recognized Local 170 prior to the commencement of operations, before the hiring of any substantial number of employees; the unit employees had no choice but to accept the union as their agent for collective bargaining. The respondent suggests, and the petitioner concedes,
that the initial recognition of Local 170 by the predecessor was unlawful as a recognition of a non-majority union, see International Ladies' Garment Workers' Union v. NLRB, 366 U.S. 731, 48 LRRM 2251, 6 L. Ed. 2d 762, 81 S. Ct. 1603 (1961). The respondent urges that it cannot be compelled to bargain as a successor employer, where such a duty is triggered solely by the existence of a collective bargaining agreement which was illegal when made with a union which has not been shown to have ever enjoyed the support of an uncoerced majority of the employees.
The petitioner's theory is that the union is entitled to a presumption of majority status flowing from the pre-existing collective bargaining agreement, lawful on its face, between Local 170 and the predecessor employer.
Such a presumption may be rebutted by proof by the employer that the majority had been lost or by proof of a good faith doubt of the union's continuing majority status based on objective considerations.
The presumption of continued majority status for a certified incumbent union was defined in Laystrom Manufacturing Co., 151 NLRB 1482, 58 LRRM 1624 (1965),
and adopted by the Third Circuit in NLRB v. Frick Company, 423 F.2d 1327, 1330-31, 73 LRRM 2889, 2891 (3d Cir. 1970), and by other circuit courts.
One purpose of this presumption is to promote stability in the collective bargaining relationship. This was described in Emerson Manufacturing Co., 200 NLRB 148, 150, 81 LRRM 1416 (1972), which involved a certified union:
The requirement of demonstrable and reasonably based grounds for challenging an incumbent union's presumed continued majority status at the end of a contract term is designed to effectuate statutory policy of promoting stability in a collective-bargaining relationship without foreclosing employees' freedom of choice. Quite clearly, it would only be disruptive of stable and uninterrupted bargaining relationships to allow employers at their option, and without good reason therefor, to put unions to the burden and expense of going through an election campaign at the end of each contract term to reestablish their majority status as a condition to the negotiation of a new contract.
Furthermore, the Third Circuit has held that withdrawal of recognition from a union that was voluntarily recognized should be governed by the same standards as withdrawal of recognition of a Board-certified union. NLRB v. Frick Company, supra.
This court cannot say that the extension of the benefit of this presumption to non-certified unions in their relationships with successor employers, as noted above, is inconsistent with the statutory policy of promoting stability of established collective bargaining relationships, nor is the application of such a policy to the facts of this case irrational. "The fact that this theory has not been tested in this particular factual context does not require a contrary determination." Balicer v. International Longshoremen's Ass'n., 364 F. Supp. 205, 226, 84 LRRM 2280 (D.N.J.), aff'd 491 F.2d 748, 86 LRRM 2152 (1973).
This court finds that the petitioner's legal theory of this prima facie unfair labor practice charge is substantial and not frivolous; namely, there is sufficient support for the proposition that a successor employer is obligated to recognize and bargain with an incumbent union which is a party to a pre-existing collective bargaining agreement, in the absence of proof of actual minority or of the successor employer's good faith doubt of majority status, because the union is entitled to a presumption of majority status without proof that a majority of the employees has actually chosen or supported the union or approved the agreement.
There is reasonable cause to believe, prior to considering respondent's rebuttal, that the elements of this prima facie unfair labor practice are present. Accordingly, we must consider the respondent's assertion of the existence of a reasonable good faith doubt which would rebut the petitioner's prima facie showing.
2. Respondent's defenses
The respondent Pick-Mt. Laurel urges two theories in rebuttal: first, that the predecessor's 1975 collective bargaining agreement with the union was a sham, void ab initio and therefore incapable of supporting the presumption of majority status; and second, that it had a reasonable good faith doubt of the union's majority status based upon facts which it first learned near the time of acquiring the hotel, including the facts surrounding the initial recognition of the union in 1975. Each of these claims requires consideration of the proper impact of the six-month limitation rule in section 10(b) of the Act,
which the petitioner would employ as an exclusionary rule barring respondent's reliance upon any event - notably the circumstances of the 1975 agreement - occurring more than six months prior to respondent's refusal to recognize Local 170 in February, 1977.
Section 10(b) provides by its terms that the Board may not issue a complaint based upon an unfair labor practice which occurred more than six months prior to the filing of the charge with the Board. The Supreme Court interpreted section 10(b) in Local 1424, IAM v. NLRB, 362 U.S. 411, 45 LRRM 3212, 4 L. Ed. 2d 832, 80 S. Ct. 822 (1960), holding that an NLRB complaint challenging the continuing enforcement of an unlawful minority union contract is time-barred where the contract was executed more than six months prior to the filing of the charge. The policies underlying section 10(b) are
to bar litigation over past events "after records have been destroyed, witnesses have gone elsewhere, and recollections of the events in question have become dim and confused." H.R. Rep. No. 245, 80th Cong., 1st Sess., p. 40, and of course to stabilize existing bargaining relationships.
Bryan Manufacturing Co. [Local 1424], supra, 362 U.S. at 419, 45 LRRM at 3216. Section 10(b) bars reliance upon the fact of an agreement's unlawful execution to find an unfair labor practice where no unfair labor practice could otherwise be demonstrated within the six-month limitation period.
Section 10(b) would be frustrated if an unfair labor practice could be established by exclusive reliance upon conduct occurring prior to the limitation period. This does not mean, however, that all evidence of conduct prior to the period is barred for all purposes.
The admissibility of past events turns upon the purpose for which the evidence is offered. The Supreme Court distinguished the above situation - in which section 10(b) prohibits evidence of an outdated unfair labor practice to necessarily establish a current unfair labor practice - from the situation where
occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices. There, earlier events may be utilized to shed light on the true character of matters occurring within the limitations period; and for that purpose § 10(b) ordinarily does not bar such evidentiary use of anterior events.