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Zipp v. Geswke & Sons

January 9, 1997

GLENN A. ZIPP, REGIONAL DIRECTOR OF THE THIRTY-THIRD REGION OF THE NATIONAL LABOR RELATIONS BOARD AND NATIONAL LABOR RELATIONS BOARD,

PLAINTIFFS-CROSS-DEFENDANTS-APPELLEES,

v.

GESKE & SONS, INCORPORATED,

DEFENDANT-CROSS-PLAINTIFF-APPELLANT,

v.

WILLIAM B. GOULD, IV, INDIVIDUALLY, AND AS CHAIRMAN OF THE NATIONAL LABOR RELATIONS BOARD, JAMES M. STEPHENS, INDIVIDUALLY, AND AS A MEMBER OF THE NATIONAL LABOR RELATIONS BOARD, DENNIS M. DEVANEY, INDIVIDUALLY, AND AS A MEMBER OF THE NATIONAL LABOR RELATIONS BOARD, ET AL.,

CROSS-DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 94 C 50231 Philip G. Reinhard, Judge.

Before COFFEY, RIPPLE and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

ARGUED APRIL 15, 1996

DECIDED JANUARY 9, 1997

This case is a companion case to Geske & Sons, Inc. v. NLRB, Nos. 95-2213 & 95-2358 (7th Cir. Jan. 9, 1997) ("Geske I"). In this case, Geske & Sons, Inc. ("Geske") sought an injunction from the district court prohibiting the National Labor Relations Board ("NLRB" or "the Board") from pursuing unfair labor practice charges against Geske. The district court held that, under the National Labor Relations Act, 29 U.S.C. sec. 151 et seq. ("NLRA" or "the Act"), it lacked subject matter jurisdiction to consider Geske's claims, and therefore dismissed them. Geske now appeals, and we affirm.

I.

BACKGROUND

We shall assume the reader's familiarity with the facts and holding in Geske I, and repeat them here briefly only insofar as they are relevant to this appeal.

Geske is the only non-unionized asphalt manufacturer in the Chicago area. The International Union of Operating Engineers, Local 150 ("Local 150" or "the Union"), represents operating engineers in the construction industry in the Chicago area. In August 1991, Local 150 began to picket Geske's plant for recognition as the union representing Geske's operator workers. The Union's picket included signs that stated:

I.U.O.E. LOCAL 150 ON STRIKE AGAINST GESKE FOR RECOGNITION AS MAJORITY BARGAINING REPRESENTATIVE OF COMPANY'S OPERATING ENGINEER EMPLOYEES

On September 5, 1991, Geske filed suit in Illinois state court contending that Local 150's picket signs libeled Geske. Geske claimed that the "On Strike" statement on the signs falsely implied that Geske's workers were on strike and refused to work. According to Geske, such a false representation constitutes a cause of action in Illinois for trade libel.

Geske sought from the Illinois trial court a preliminary injunction prohibiting Local 150 from further picketing with the allegedly defamatory signs. The trial court denied the injunction, and Geske took an interlocutory appeal. Geske moved for and received a stay of proceedings in the trial court until its interlocutory appeal was resolved.

Meanwhile, on September 19, Local 150 responded to Geske's state suit by filing an unfair labor practice charge with the NLRB. The charge claimed that, because Geske's state suit was baseless and filed with a retaliatory intent, Geske's prosecution of the suit constituted an unfair labor practice under section 8(a) of the Act, 29 U.S.C. sec. 158(a). *fn1 Local 150 filed a First Amended Charge on March 24, 1992, and the NLRB's General Counsel filed a complaint against Geske on March 30, 1992.

On April 1, 1992, Glenn Zipp, the Regional Director of the NLRB, sent letters to the Illinois trial and appellate courts in which Geske's suit and interlocutory appeal were pending. The letters explained that the state suit was the subject of an unfair labor practice complaint pending before the NLRB, and that Geske therefore could not ...


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