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PASCARELL EX REL. NLRB

May 17, 1994

WILLIAM A. PASCARELL, Regional Director of Region 22 of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
DRUG, CHEMICAL, PLASTIC & AFFILIATED INDUSTRIES WAREHOUSE EMPLOYEES UNION, LOCAL 815, Respondent.


WOLIN


The opinion of the court was delivered by: ALFRED M. WOLIN

This matter is before the Court pursuant to an Order, dated April 21, 1994, as amended April 22, 1994, requiring respondent Drug, Chemical, Cosmetic, Plastic & Affiliated Industries Warehouse Employees Union, Local 815 (the "Union") to show cause why a temporary injunction should not be issued restraining the Union from certain picketing activities pending the final administrative disposition of an unfair labor practices charge filed against the Union by Cosmetic Essence, Inc. ("CEI"). The Court issued the Order to Show Cause upon the application of William A. Pascarell ("Director Pascarell"), Regional Director of Region 22 of the National Labor Relations Board, for and on the behalf of the National Labor Relations Board ("NLRB"), dated April 20, 1994. The Court has reviewed the parties written submissions and has considered the matter pursuant to Federal Rule of Civil Procedure 78.

 BACKGROUND

 The genesis of this dispute dates back to November 1993, when Houbigant, Inc. ("Houbigant"), an international designer, marketer and distributor of perfumes and toiletries, summarily fired 200 workers who were then employed at Houbigant's Ridgefield, New Jersey facility. The employment terms for these Houbigant employees were governed by a collective bargaining agreement with the Union.

 At or around the same time, Houbigant ceased all production, manufacturing and distributing operations and entered into a subcontracting agreement, under which CEI now performs the manufacturing, processing, packaging and distribution of Houbigant products. Houbigant consequently purchases and supplies to CEI the raw materials required to produce and package the Houbigant products. These materials are delivered for production by common carrier to CEI's East Ridgefield, New Jersey (the "CEI facility").

 On November 18, 1991, Houbigant and its affiliated companies filed for bankruptcy protection under Chapter 11 of the United States Bankruptcy Code. Having dispensed with its manufacturing and distribution systems, Houbigant continues to sell and market its products. In November 1993, CEI also leased to Houbigant office floor space at the CEI facility.

 With a number of individuals, ranging from fifty-five to one hundred at a time, the Union has continued to picket the CEI Facility, allegedly at both the neutral Gate A and the primary Gate B, by walking a circular path over the approximately 400 yards that separate the two gates. The pickets patrol this area seven days a week, commencing at 6:00 a.m. and concluding at 9:00 p.m., daily.

 In March 1994, CEI filed an administrative complaint against the Union, alleging that the Union's activities at Gate A constituted secondary picketing which is proscribed by Section 8(b)(4) of the National Labor Relations Act, as amended ("NLRA"), 29 U.S.C. § 158(b). The complaint was amended on April 18, 1994. Director Pascarell subsequently filed the pending application pursuant to Section 10(1) of the NLRA, 29 U.S.C. § 160(1), seeking a temporary injunction restraining the Union from picketing at the CEI facility pending final disposition of the administrative action before the NLRB.

 DISCUSSION

 When considering an application under section 10(1) of the NLRA, a district court is not called upon to determine the merits of the unfair labor practice charge, or whether, in fact, such a violation has occurred. Schaufer v. Local 1291, Int'l Longshoremen's Ass'n, 292 F.2d 182, 186 (3d Cir. 1961); Kobell v. Amalgamated Council of Greyhound Unions, 758 F. Supp. 1060, 1063 (W.D. Pa. 1990). The task of resolving the legal and factual questions is reserved exclusively to the NLRB, subject to review by a federal court of appeals under section 10(e) and 10(f) of the NLRA. N.L.R.B. v. Denver Building & Constr. Trades Council, 341 U.S. 675, 681-83, 71 S. Ct. 943, 95 L. Ed. 1284 (1950).

 On a section 10(1) application, this Court's inquiry is limited to the following three factors: (1) whether the Director has presented a "substantial and nonfrivolous legal theory" that would support a legal conclusion that an unfair labor practice had occurred; (2) whether the facts support the Director's the legal theory and (3) whether injunctive relief is the just and proper remedy. Hoeber v. Local 30, United Slate, Tile & Composition Roofers, 939 F.2d 118, 121-25 (3d Cir. 1991) (quoting Kobell v. Suburban Lines, Inc., 731 F.2d 1076, 1085 (3d Cir. 1984)).

 The burden of proof confronted by Director Pascarell under section 10(1) is "relatively insubstantial" and requires only that he have "reasonable cause" to believe that the proffered facts and legal theory support a finding of an unfair labor practice. Hirsch v. Building and Constr. Trades Council, 530 F.2d 298, 302 (3d ...


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