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KINNEY EX REL. NLRB v. DOMINICK'S FINER FOODS

October 3, 1991

ELIZABETH KINNEY, REGIONAL DIRECTOR FOR Region 13 of the National Labor Relations Board, For and On Behalf of The NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
DOMINICK'S FINER FOODS, INC.; DONNA'S DISTRIBUTION, A Subsidiary of DOMINICK'S FINER FOODS, INC. Respondent, and PRODUCE, FRESH & FROZEN FRUITS AND VEGETABLES, FISH, BUTTER, EGGS, CHEESE, POULTRY, FLORIST, NURSERY, LANDSCAPE & ALLIED EMPLOYEES, DRIVERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS UNION, LOCAL 703, A Division of TRUCK DRIVERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS UNION 707 Affiliated With the NATIONAL PRODUCTION WORKERS UNION, Respondent



The opinion of the court was delivered by: DUFF

 Introduction

 Elizabeth Kinney, Regional Director For Region 13 of the National Labor Relations Board (hereinafter the "Board"), suspects that respondents Dominick's Finer Foods, Inc. and its subsidiary Donna's Distribution (collectively hereinafter "Dominick's") have inter alia violated Sections 8(a)(1), (2) and (5) of the National Labor Relations Act (the "Act"). The Board also suspects respondent Produce, Fresh & Frozen Fruits and Vegetables, Fish, Butter, Eggs, Cheese, Poultry, Florist, Nursery, Landscape & Allied Employees, Drivers, Chauffeurs, Warehousemen and Helpers Union, Local 703, a division of Truck Drivers, Chauffeurs, Warehousemen and Helpers Union, Local 707, affiliated with National Production Workers Union (hereinafter "Local 707 NPWU") of having violated inter alia Section 8(b)(1)(A) of the Act. The General Counsel of the National Labor Relations Board has issued complaints against the respondents pursuant to § 10(b) of the Act, 29 U.S.C. § 160(b). Consequently the respondents are in the process of defending against the charges in an administrative proceeding. A hearing before an Administrative Law Judge of the National Labor Relations Board has been scheduled to begin September 30, 1991.

 Pending the resolution of the administrative proceedings, the Board has petitioned this court pursuant to § 10(j) of the Act, 29 U.S.C. § 160(j), for injunctive relief restraining the respondents from continuing to engage in certain specified conduct (discussed below) allegedly in further violation of the Act. Congress enacted § 10(j) to permit district courts to grant interim injunctive relief while the administrative adjudication of the dispute "lumbers to a conclusion." Kinney v. Pioneer Press, 881 F.2d 485, 486 (7th Cir. 1989). The pace of N.L.R.B. proceedings has been said to be "notoriously glacial." Boire v. International Brotherhood of Teamsters, 479 F.2d 778, 788 (5th Cir. 1973). Thus, designed to protect the status quo during administrative delay, Section 10(j) provides:

 The Board shall have power, upon issuance of a complaint as provided in subsection (b) of this section charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall . . . have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.

 29 U.S.C. § 160(j).

 Respondent Local 707 NPWU has moved under Rule 12(b)(6) to dismiss the Board's petition for failure to state a claim upon which relief can be granted. *fn1" This court must now decide the merits of Local 707 NPWU's amended motion to dismiss; it is not deciding at this juncture whether or not to issue the injunctive relief. That question is not yet before the court.

 Standard of Review

 As Respondent Local 707 NPWU stated (although subsequently ignored) in its brief, in ruling on a 12(b)(6) motion, the court must accept "all allegations in the complaint as true." Resp. Br. at 7, quoting Collins v. County of Kendall, 807 F.2d 95, 99 (7th Cir. 1986); see also Yeksigian v. Nappi, 900 F.2d 101, 102 (7th Cir. 1990). Respondent's motion to dismiss will be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80 , 78 S. Ct. 99 (1957); see generally C. Wright & A. Miller, 5A Federal Practice and Procedure: Civil 2d § 1357 (West Publishing, 2d ed. 1990).

 In this case, the relief requested is temporary injunctive relief under 29 U.S.C. § 160(j) pending administrative adjudication of the charges of unfair labor practices. In order to determine whether the Board's petition states a claim for such relief, it is necessary to analyze the requirements the Board must meet in order to be granted a § 10(j) injunction. Local 707 NPWU incorrectly cites Squillacote v. Local 248, Meat and Allied Food Workers, 534 F.2d 735 (7th Cir. 1976) ("Meat Workers ") as providing the standard for § 10(j) injunctions. The Seventh Circuit, however, choosing not "to perpetuate the effects of [its] own mistakes," abandoned the Meat Workers approach in Kinney v. Pioneer Press, 881 F.2d 485 (7th Cir. 1989). Instead, the Pioneer Press court held that "once the Board seeks injunctive relief under § 10(j), the only question for the court is whether the Board has demonstrated that relief is 'just and proper' under the approach traditionally applied to equitable cases filed by public agencies." Id. at 493.

 That "traditional approach" requires the Board to demonstrate (1) no adequate remedy at law, (2) irreparable harm in the absence of an injunction exceeding the irreparable harm the other side will suffer if the injunction issues, (3) a reasonable likelihood of winning on the merits, and (4) harm to the public interest stemming from the injunction that is tolerable in light of the benefits achieved by the relief. Id. at 490 n.3. Pioneer Press also indicates that district courts should especially bear in mind the effect on the public interest in determining whether or not to grant a § 10(j) injunction. See id. at 491.

 As stated above, however, this court is not now deciding whether or not to grant injunctive relief. Local 707 NPWU's motion to dismiss introduces an additional layer of analytic complexity. This court is deciding whether the face of the complaint alleges facts which, if assumed to be true, are sufficient to entitle the Board to the relief it requests. In other words, this court is merely checking to see whether the facts alleged in the Board's petition meet the traditional standard for an injunction. It is not checking whether the Board in fact has a likelihood of prevailing at the administrative hearing or in fact meets the other requirements of a § 10(j) injunction.

 Discussion

 A. Review of ...


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