Pascarell v. New York Shipping Association Inc‪.‬

Opinion OF THE COURT The New York Shipping Association, Inc. (NYSA), the International Longshoremen's Association, AFL-CIO (ILA), and others, appeal from a preliminary injunction issued pursuant to Section 10(l ) of the National Labor Relations Act, 29 U.S.C. § 160(l ), on a petition brought by William A. Pascarell, Acting Regional Director, on behalf of the National Labor Relations Board (the Board). The injunction prohibits the defendants from implementing certain provisions of a collective bargaining agreement between NYSA and ILA pending resolution of charges before the Board that those provisions, the Rules on Containers, violate Section 8(b)(4)(ii)(B) of the Labor Management Relations Act, 29 U.S.C. § 158(b)(4)(ii)(B). Prior stages of this ongoing dispute are set out in NLRB v. International Longshoremen's Ass'n, 447 U.S. 490, 100 S. Ct. 2305, 65 L. Ed. 2d 289 (1980); Consolidated Express Inc. v. New York Shipping Ass'n, Inc., 641 F.2d 90 (3d Cir. 1981), mandamus and prohibition denied, In re International Longshoremen's Association, 451 U.S. 905, 101 S. Ct. 2008, 68 L. Ed. 2d 318 (1981); Consolidated Express, Inc. v. New York Shipping Ass'n, 602 F.2d 494 (3d Cir. 1979), vacated and remanded, 448 U.S. 902, 100 S. Ct. 3040, 65 L. Ed. 2d 1131 (1980); Balicer v. International Longshoremen's Ass'n, 364 F. Supp. 205 (D.N.J.), aff'd mem., 491 F.2d 748 (3d Cir. 1973). In the Balicer case the Regional Director on behalf of the Board obtained a Section 10(l ) injunction preventing the operation of the Rules on Containers pending resolution of unfair labor practice charges pending before the Board. Since the charges involved alleged violations of Section 8(b)(4) that application was, under Section 10(l ), mandatory. Compare Section 10(j), 29 U.S.C. § 160(j). A preliminary injunction issued, and thus from 1973 to date the Rules on Containers were never operative. The Board in a number of cases held that the Rules on Containers did in fact violate Section 8(b)(4). The effect of those decisions was to prevent implementation of the Rules. On June 20, 1980, however, the Supreme Court held that in deciding the Section 8(b)(4) charges the Board had applied on incorrect legal standard, and remanded for further consideration. N.L.R.B. v. International Longshoremen's Ass'n, supra. The status quo from 1973 through 1980 was that the Rules on Containers were inoperative. This permitted continued operation of the businesses of certain freight consolidators who employed teamsters rather than longshoremen. Late in 1980, NYSA and ILA agreed to institute implementation of the Rules beginning January 2, 1981. Meanwhile, pursuant to the Supreme Court's mandate, the Board conducted an investigation of the Section 8(b)(4) charges in light of the Court's opinion, and concluded that complaints should be processed. That conclusion triggered the mandatory Section 10(l ) duty to petition for injunctive relief pending the Board's final adjudication. By the time the district court considered that petition it was clear that the defendants intended to implement the Rules. Such implementation would drastically alter the status which prevailed from 1973 through 1980, by depriving the freight consolidators and their employees of business they had enjoyed for years. The district court issued a Section 10(l ) injunction prohibiting implementation of the Rules pending the Board's decision on the pending charges. This appeal followed. Several objections to the district court order are advanced, none of which are meritorious.