Charging Parties in Section 10(j) Injunction and Section 10(j) Contempt Proceedings
OFFICE OF THE GENERAL COUNSEL
|MEMORANDUM GC 99-4
||June 3, 1999
TO: All Regional Directors,
Officers-in-Charge And Resident Officers
FROM: Fred Feinstein, General Counsel
SUBJECT: Participation by Charging Parties in
Section 10(j)Injunction and Section 10(j) Contempt Proceedings
The purpose of this Memorandum is to detail the degree to
which charging parties in the underlying unfair labor practice proceeding may participate
in the U.S. district court Section 10(j) injunction proceeding. Charging parties in
Section 10(j) proceedings should be given the same rights as charging parties in 10(l)
proceedings: the "opportunity to appear by counsel and present any relevant
testimony." Section 10(l), 29 U.S.C. 160(l). This participation does not, however,
include the right to formally intervene as a party in the 10(j) proceeding. It is more
analogous to that of an active amicus curiae.
Such participation should apply not only to the initial
10(j) proceeding which seeks the temporary injunction, but also to any subsequent
proceedings to modify, amend, reconsider or to oppose a stay of any decree obtained, and
any contempt proceeding which seeks a civil contempt adjudication and purgation order.1
Set forth below is the legal analysis in support of the
argument that charging parties should be denied formal intervention as parties in the
injunction proceeding, as well as that supporting the position that charging parties in
10(j) proceedings should be accorded the right of participation due to charging parties in
Section 10(l) proceedings. Any charging party motion to intervene should be opposed and
any charging party motion for amicus status should be supported, relying upon the analysis
set forth below.
2. The Legislative History of Section 10(j) and the
Policies under the Federal Rules Demonstrate that Charging Parties Have No Right to
Intervene in 10(j) and 10(l) Proceedings
In seeking temporary injunctive relief under Section 10(j),
the National Labor Relations Board (NLRB or Board) acts solely "in the public
interest and not in vindication of purely private rights." Senate Report No. 105 on
S.1126, 80th Cong., 1st Sess., p. 8 (April 17, 1947), reprinted in I Legislative
History LMRA 1947 414 (Government Printing Office 1985).2 Thus, it is well
established that the right to seek a temporary injunction to enjoin unfair labor practices
pursuant to Section 10(j) is exclusively within the authority of the Board. See Amalgamated
Clothing Workers of America v. Richman Brothers Co., 348 U.S. 511, 516-517 (1955).3
Indeed, during the debate on Section 10(j) and (l) in 1947, Congress defeated a proposed
amendment to Section 10(l) to allow private parties direct access to the district courts
to seek injunctive relief for certain unfair labor practices. See Muniz v. Hoffman,
422 U.S. 454, 465-467 (1975)(discussing legislative history of Taft-Hartley Amendments).
Since intervention would permit a party independently to appeal or to seek a contempt
citation, granting intervention would inappropriately interfere with the Congressional
intent to vest in the Board the exclusive authority to prosecute injunction proceedings. Penello
v. Burlington Industries, Inc., 54 LRRM 2165 (W.D. Va. 1963). See also Sears,
Roebuck & Co. v. Carpet, etc. Union, 410 F.2d 1148, 1150-1151 (10th Cir. 1969),
vacated on other grounds as moot, 397 U.S. 655 (1970) (denying intervention at appellate
level); Philips v. Mineworkers, 218 F. Supp. 103, 105-106 (E.D. Tenn. 1963)
(denying intervention for purposes of dissolving the injunction and instituting contempt
Courts have also reasoned that because the statutory power
to petition for 10(j) and 10(l) relief is limited to the Board, a charging party has no
independent interest protectable by intervention under Fed.R.Civ.P., Rule 24(a)(2) or
(b)(2). Accordingly, courts have routinely denied charging parties motions to intervene
under that Rule. Reynolds v. Marlene Industries Corp., 250 F. Supp. 722, 723-724
(S.D.N.Y. 1966); Boire v. Pilot Freight Carriers, Inc., 86 LRRM 2976, 2978 (M.D.
Fla. 1974), aff'd. 515 F.2d 1185 (5th Cir.), reh. denied, 521 F.2d 795 (1975), cert.
denied 426 U.S. 934 (1976); Squillacote v. Local 578, Auto Workers, 383 F. Supp.
491, 492 (E.D. Wisc. 1974); Wilson v. Liberty Homes, Inc., 500 F. Supp. 1120, 1123
(W.D. Wisc. 1980).4
3. Charging Parties in Section 10(j) Proceedings Should
Enjoy the Same Rights of Participation as in Section 10(l) Proceedings
Section 10(l) expressly directs that charging parties
"shall be given an opportunity to appear by counsel and present any relevant
testimony." Given the functional similarity of section 10(j) and 10(l)5 it
is appropriate to accord the same degree of participation to charging parties in 10(j)
proceedings. Such participation comes under the general rubric of an amicus curiae, a
status courts have often granted to charging parties in Section 10(j) cases.6
Often the court has granted the charging party amicus the same privileges as would be
granted under 10(l).7
To be sure, a 10(j) charging party amicus, like the 10(l)
charging party, is not a full party in the district court proceeding8 and may
not vary the theory of violation being advanced by the Regional Director or initiate an
4. Charging Party's Right of Participation Extends to
Section 10(j) Civil Contempt Proceedings
The right to institute proceedings for civil contempt of a
temporary interim injunction resides exclusively in the NLRB as a "public
agent;" a charging party has no independent authority to bring contempt proceedings. Shore
v. Building and Construction Trades Council, 50 LRRM 2139 (W.D. Pa. 1962). See also NLRB
v. Retail Clerks International Association, 243 F.2d 777, 782-783 (9th Cir.
1956)(charging party has no standing to seek injunctive relief to enforce prior court
decrees where Board was not seeking such relief); Philips v. Mine Workers, District 19,
218 F. Supp. at 107-108 (charging party has no right to continue 10(l) decree or to seek
contempt adjudication over objection of Regional Director); Moore v. Tangipahoa Parish
School Board, 625 F.2d 33, 34 (5th Cir. 1980)(Fed.R.Civ.P. 71 does not allow a
nonparty to enforce a court decree where such person has no standing to sue). However,
consistent with the general policy set forth above, Regions should consent to the
participation of charging parties as amicus curiae in Section 10(j) civil contempt
Consistent with the analysis set forth above, the Regions
should deny all requests and oppose all motions of charging parties to obtain formal party
status in any Section 10(j) proceeding. However, the Regions should consent to granting
the charging parties the status of amicus curiae and the same degree of participation
granted to charging parties under Section 10(l) of the Act.
If the Regions have any questions concerning this guideline
memorandum, or if issues arise not clearly covered herein, prompt telephonic advice should
be sought from the Injunction Litigation Branch in Washington.
Release to the Public
MEMORANDUM GC 99-4
1 Similarly, charging parties should be granted
amicus status in any appeal.
2 See also Seeler v. The Trading Port, Inc.,
517 F.2d 33, 40 (2d Cir. 1975).
3 Accord: Walsh v. I.L.A., 630 F.2d 864,
871-872 (1st Cir. 1980); California Assoc. of Employers v. BCTC of Reno, Nevada,
178 F.2d 175, 179 (9th Cir. 1949); Amalgamated Assoc. of Street and Motor Coach
Employees v. Dixie Motor Coach Corp., 170 F.2d 902, 907 (8th Cir. 1948); Amazon
Cotton Mill Company v. Textile Workers Union of America, 167 F.2d 183, 185-187 (4th
Cir. 1948); Brown & Sharpe Mfg. Co. v. District 64, IAM, 535 F. Supp. 167, 169
n. 2 (D. R.I. 1982).
4 Other district courts have denied intervention
without reference to Rule 24. See, NLRB v. Ona Corp., 605 F. Supp. 874, 876 (N.D.
Ala. 1985); Gottfried v. Mayco Plastics, Inc., 472 F. Supp. 1161, 1163, 1164 (E.D.
Mich. 1979), affd. 615 F.2d 1360 (6th Cir. 1980)(table). Other appellate courts have also
denied intervention. See, Hirsch v. Building and Construction Trades Council of Phila.
& Vicinity, AFL-CIO, 530 F.2d 298, 307-308 (3d Cir. 1976); Compton v. N.M.U.,
533 F.2d 1270, 1276 n. 4 (1st Cir. 1976); Solien v. Miscellaneous Drivers etc., 440
F.2d 124, 129-132 (8th Cir.), cert. denied 403 U.S. 905 (1971); Henderson v. Operating
Engineers, Local 701, 420 F.2d 802, 806 n. 2 (9th Cir. 1969).
5 The two provisions were enacted as companion
provisions: section 10(l) mandates the Board to seek injunctive relief in cases involving
certain enumerated unfair labor practices (chiefly, unlawful secondary boycotts); 10(j)
authorizes the Board, in its discretion, to seek injunctive relief in all other cases. The
standards for determining the propriety of injunctive relief are generally the same. Kobell
v. Suburban Lines, Inc., 731 F.2d 1076, 1084 (3d Cir. 1984); Kinney v. Local 150,
994 F.2d 1271, 1276 (7th Cir. 1993). Although one court has held that the absence of any
reference in 10(j) to charging party participation distinguishes it from 10(l) (see Wilson
v. Liberty Homes, Inc., 500 F. Supp. at 1123), that view has not been adopted
generally and that decision has not been read as a rejection of all right to participate
in 10(j) proceedings. See Dunbar v. Landis Plastics, Inc., 996 F. Supp. 174,
179-180 (N.D.N.Y. 1998), remanded on other grounds 152 F.3d 917 (2d Cir. 1998) (table)
(distinguishing Liberty Homes and granting amicus curiae status to charging party).
6 See, e.g., Dunbar v. Landis Plastics, Inc.,
996 F. Supp. at 179-180; D'Amico v. United States Service Industries, Inc., 867 F.
Supp. 1075, 1079 (D. D.C. 1994); Garner v. Macclenny Products, Inc., 859 F. Supp.
1478, 1479 (M.D. Fla. 1994); Zipp v. Caterpillar, Inc., 858 F. Supp. 794, 795 (C.D.
Ill. 1994); Gottfried v. Mayco Plastics, Inc., 472 F. Supp. 1161, 1163, 1164 (E.D.
Mich. 1979), aff'd. 615 F.2d 1360 (6th Cir. 1980); NLRB v. Ona Corp., 605 F. Supp.
874, 876 (N.D. Ala. 1985); McLeod v. General Electric Company, 257 F. Supp. 690,
692 n. 1 (S.D.N.Y.), revd. on other grounds 366 F.2d 847 (2d Cir. 1966), stay granted 87
S.Ct. 5, vacated and remanded 385 U.S. 533 (1967).
7 See McLeod v. General Electric Company,
257 F. Supp. at 692, n. 1 (may appear by counsel, examine and cross examine witnesses and
make legal submissions); NLRB v. Ona Corp., 605 F. Supp. at 876 (afforded full
opportunity to be heard, to examine and cross-examine witnesses and present evidence
bearing upon the issues); Dunbar v. Landis Plastics, Inc., 996 F. Supp. at 180
(permitted to file memoranda and evidentiary affidavits and to participate in oral
8 See rationale above p. 2, for denying
intervention by charging parties. See also The Miller-Wohl Co., Inc. v. Commission of
Labor and Industry, State of Montana, 694 F.2d 203, 204 (9th Cir. 1982) (amici are not
parties; grant of motion to intervene is necessary to confer party status); Morales v.
Turman, 820 F.2d 728, 732 (5th Cir. 1987) (same).
9 See McLeod v. Business Machine Conference
Board, 300 F.2d 237, 242-243 (2d Cir. 1962); Sears Roebuck & Co. v. Carpet,
etc. Union, 410 F.2d at 1150-1151. See also Moten v. Bricklayers, Masons, etc.,
543 F.2d 224, 227 (D.C. Cir. 1976) (where litigant did not seek intervention, its position
was analogous to amicus; as such it had no authority to appeal); Richardson v. Alabama
State Board of Education, 935 F.2d 1240, 1247 (11th Cir. 1991) and cases cited
(refusing to consider arguments of amici not presented by party).