LABOR

LABORAuthor(s): Charles HansenSource: Administrative Law Review, Vol. 16 (WINTER-SPRING, 1964), pp. 196-198Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/40708460 .

Accessed: 12/06/2014 18:54

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access toAdministrative Law Review.

http://www.jstor.org

This content downloaded from 188.72.126.181 on Thu, 12 Jun 2014 18:54:51 PMAll use subject to JSTOR Terms and Conditions

http://www.jstor.org/action/showPublisher?publisherCode=aba

http://www.jstor.org/stable/40708460?origin=JSTOR-pdf

http://www.jstor.org/page/info/about/policies/terms.jsp


LABOR By Charles Hansen *

National Labor Relations Board - Temporary Injunction Granted by District Court against Employer's Technical Refusal to Bargain Which was Necessary under the Act to Allow Appeal to the Courts from a Certification of Bargaining Representative. Le Bus v. Manning, Max- well and Moore, Inc., (D.C., W.D. La., June 27, 1963).

The union had petitioned for a representation election at a plant of the employer and in such election secured a majority of the valid ballots cast. The employer objected to the conduct of the election in accordance with Board procedures, alleging broadly that conduct had taken place which made free choice on the part of the employees impossible. The objections were dismissed by the Board and the union was certified. In order to perfect an appeal from the Board's decision to the Court of Appeals, the employer was required to refuse to bargain with the union and did so act. While the unfair labor practice matter was pending before the Board and prior to determination by the Court of Appeals,1 the Board moved in Federal District Court to enjoin the employer's conduct under Section 10 (j) of the Act, which allows the Board to petition a Federal District Court for ancillary relief in connection with the commission of an unfair labor practice. Held, the District Court has the authority to grant "such temporary relief or restraining order as it deems just and proper." Here, there is reasonable cause to believe that an unfair labor practice is being committed and it is clear that the employer will continue such conduct. Injunctive relief is appropriate even though the employer's violation is a "technical" one, designed to allow an appeal from the Board's certification. Le Bus v. Manning, Max- well and Moore, Inc. (D.C., W.D. La., June 27, 1963), 54 LRRM 2122.

The National Labor Relations Board is active in two broad areas of labor relations. One is the certification of representatives for appropriate bargaining units, i.e., representation matters; and

* The Trane Co., LaCrosse, Wisconsin. i The Court of Appeals denied the employer's petition for review, Manning, Max-

well and Moore, Inc. v. NLRB, 324 F.2d 857 (CA-5, 1963) 54 LRRM 2659.

196



NOTES FROM COMMITTEE REPORTERS CUSTOMS 197

the other is the correction of unfair labor practices by both unions and employers, i.e., unfair labor practice proceedings. Appellate review is provided in the statute solely in the case of unfair labor practice proceedings.2 This apparent oversight was the result of deliberate design on the part of Congress in passing the Wagner Act. The Congressional purpose was to eliminate court contests of election orders which had inordinately delayed elections under prior law.3 However, and this is critical, it was also the clear inten- tion of Congress that full post election appellate review of representation matters was to be provided through the use of unfair labor practice proceedings. As stated at page 14 of Sen. Rep. 573, Committee on Education and Labor, 74th Cong., 1st Sess.:

"There is no more reason for court review prior to an election than for court review prior to a hearing. But if subsequently the Board makes an order predicated upon the election, such as an order to bargain collectively with elected representatives, then the entire election procedure becomes part of the record upon which the order of the Board is based, and is fully reviewable by an aggrieved party in the Federal courts in the manner provided in section 10. And this review would include within its scope the action of the Board in determining the appropriate unit for pur- poses of the election. This provides a complete guarantee against arbitrary action by the Board."

It would appear that the District Court in the instant case has taken action antithetical to the aforenoted statutory plan. The statute contemplates appellate review of representative matters solely within an unfair labor practice context. In order to obtain such review, the aggrieved party must commit a technical unfair labor practice. And yet, the Court in the instant case has enjoined the employer from so acting.4 It is no answer to say that the re- quirement imposed by the Court herein is but temporary and that later dissolution of the injunctive relief by the appellate court will restore the status quo. That is not the case. As is well known, the statute imposes many important obligations on the employer who is required to bargain under the Act. The very act of bargain-

2 American Federation of Labor et al. v. NLRB, 308 U.S. 401, 5 LRRM 671 (1940). 3 Sen. Rep. No. 573, Committee on Education and Labor, 74th Cong., 1st Sess.

pages 5, 6. * It is arguable that by enjoining continuation of the unfair labor practice, the

very basis for the employer's appeal might be destroyed. See Union Carbide and Carbon Corp., 100 NLRB 689, 30 LRRM 1338 (1952). Cf. Stanislaus Food Products Co., 79 NLRB 260, 22 LRRM 1384 (1948).



198 SECTION OF ADMINISTRATIVE LAW

ing for a contract as required by law 5 may result in a costly strike. Similarly the strictures placed on unilateral employer action 6 may be needlessly burdensome in the case of an employer who may ultimately be found by an appellate court never to have been obligated to bargain at all. It is submitted that it is not "just and proper'* to grant injunctive relief against technical refusals to bargain which were engaged in solely for the purpose of perfect- ing an appeal pursuant to the statutory plan.

s NLRB v. Montgomery Ward & Co., 133 F (2) 676, 12 LRRM 508 (1943); Seven- teenth Annual Report of the NLRB (1952) at page 173 et seq.

6 See for example Town and County Manufacturing Co., 136 NLRB No. Ill, 49 L.R.R.M. 1918 (1962), Enforced 316 F.2d 846 (CA-5, 1963).



Documents

LABOR