Dawidoff ex rel. National Labor Relations Board v. Minneapolis Building & Construction Trades Council

430 F. Supp. 322, 95 L.R.R.M. (BNA) 3306, 1977 U.S. Dist. LEXIS 16640
CourtDistrict Court, D. Minnesota
DecidedMarch 30, 1977
DocketCiv. No. 4-76-422
StatusPublished

This text of 430 F. Supp. 322 (Dawidoff ex rel. National Labor Relations Board v. Minneapolis Building & Construction Trades Council) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dawidoff ex rel. National Labor Relations Board v. Minneapolis Building & Construction Trades Council, 430 F. Supp. 322, 95 L.R.R.M. (BNA) 3306, 1977 U.S. Dist. LEXIS 16640 (mnd 1977).

Opinion

MEMORANDUM

MILES W. LORD, District Judge.

The parties are before the Court pursuant to a remand from the Court of Appeals for the Eighth Circuit in order for this Court to limit duration of a 10(7) injunction to “the minimum time necessary for Board review if the Board were to accord the case its most expeditious handling.” Dawidoff, [323]*323Acting Regional Director of the Eighteenth Region of the NLRB, for and on behalf of the NLRB v. Minneapolis Building and Construction Trades Council, AFL-CIO, and Local No. 34, Sheet Metal Workers International Association, AFL-CIO, 550 F.2d 407 (1977).

The facts are reported in the Memorandum and Order of this Court by the same name, dated October 13, 1976, and in the opinion of the Court of Appeals.

The National Labor Relations Board is acting on behalf of Krasen, a mechanical subcontractor working at the Howard Lake School construction job, in Minnesota. Krasen employees are currently represented by the Christian Labor Association under a contract which is in effect from 1976 through 1978. They were previously represented by the Christian Labor Association in a 1974 through 1976 contract. The Sheet Metal Workers Local No. 34 is an AFL-CIO labor organization associated with the Minneapolis Building and Construction Trades Council, a group of AFL-CIO building trades affiliates. At trial, the parties stipulated that Krasen paid wages and provided benefits which were lower than those paid by other subcontractors for the same kind of work.

On August 5, 1976, the respondents placed a banner near the gate used by Krasen employees at the Howard Lake School construction site. The banner stated that the mechanical work being performed at the site by Krasen was being done at substandard wages and benefits for the area. On September 27,1976, the Acting Regional Director petitioned the district court for injunctive relief pursuant to § 10(7) of the National Labor Relations Act, as amended, 61 Stat. 149; 73 Stat. 544; 29 U.S.C. § 160(7). This Court issued an Order to Show Cause on September 29, 1976. The hearing was held on October 8, 1976, and the injunction was entered on October 13, 1976.

This Court noted that the work on the construction site might be completed well in advance of the time at which the Board ever received a decision from the Administrative Law Judge or rendered a decision itself. As a consequence, we noted, “if injunctive relief were granted in this case pending final adjudication by the Board, what was intended to be interim relief may actually result in a final adjudication,” on the merits. Nevertheless, with reluctance, this Court adhered to the statutory requirements and issued the temporary injunction.

By October 20, 1976, the Acting Regional Director had taken an appeal to the Eighth Circuit concerning other aspects of this Court’s decision in the case. On March 1, 1977, the Eighth Circuit rendered its decision in the case, holding that in a situation such as this, a court may properly limit the duration of its § 10(7) injunctive remedy when the practical effect of a limited injunction may be to deny the parties a final determination of the charge by the NLRB prior to the completion of the picketed project. In the meantime, a hearing was held before the Administrative Law Judge, on October 28, 1976, and briefs were filed on December 9, 1976. No decision had been rendered by the Administrative Law Judge by the time the Eighth Circuit issued its opinion, a delay which the Eighth Circuit found to be inexcusable under the circumstances. The Administrative Law Judge’s decision was finally issued on March 17, 1977.

The issue presently before this Court is what is the minimum time necessary for Board review if the Board were to accord the case its most expeditious handling. The Eighth Circuit instructs us, that after determining the minimum time necessary for review, the Court is to restrict the term of the 10(7) injunction to a period of time not shorter than the period of time necessary for the most expeditious review by the Board. It should be noted that the goal behind this determination is to encourage the Board to act with the utmost efficiency and promptness in its review of the Administrative Law Judge’s decision.

A hearing on this matter was held on March 29, 1977, at which time the Court [324]*324accepted the affidavits of the parties as a sufficient description of the existing circumstances on which to base its decision. The parties were in agreement as to the facts set forth in the affidavits.

The affidavit of David G. Adolfson, the Senior Vice President of Adolfson & Peterson, the general contractor on the Howard Lake, Minnesota school construction project, established that Krasen Plumbing & Heating Co. will have completed its portion of the work on the job on about April 13, 1977. The affidavit further predicted that the general contractor, Adolfson & Peterson, will have completed its portion of the contract by about April 29, 1977.

According to the Eighth Circuit’s opinion, the burden was on the Board to establish, “the minimum time necessary for Board review if the Board were to accord the case its most expeditious handling.” The Board presented an affidavit from John C. Trues-dale, the Executive Secretary of the National Labor Relations Board. The Court adopts the facts set forth in this affidavit, paragraphs 1-4 and 6, as its findings with respect to the nature of the Board’s procedures in 10(1) cases and the length of time necessary for the Board to make its most expeditious review in the case at hand. For that reason, those portions of the affidavit are set forth below.

AFFIDAVIT

I, John C. Truesdale, being duly sworn, upon my oath depose and say:

1. I am presently Executive Secretary of the National Labor Relations Board and have been so since June 1972. As Executive Secretary, I am charged with the administrative management of the Board’s judicial affairs, which includes oversight of the Board’s decision-making processes. My responsibilities include maintenance of the Board’s docket, assignment of cases and monitoring their progress before the Board, and issuance of its final decisions.
2. In response to the Eighth Circuit’s inquiry in Dawidoff v. Minneapolis Building and Construction Trades Council, No. 76-1891, as to the “minimum time necessary for Board review if the Board were to accord the case its most expeditious handling,” I will outline the Board’s procedures for assignment, review and decision of unfair labor practice cases, after the issuance of an Administrative Law Judge’s (ALJ) decision.
(a) The ALJ decision is formally issued by the Executive Secretary and is served on the parties with an order transferring the proceedings to the Board and with an excerpt from the Board’s Rules and Regulations regarding appeal to the Board. The rules provide 23 days for the filing of exceptions and supporting briefs. Within 13 days from the last day on which exceptions may be filed, a party opposing the exceptions may file either an answering brief to the exceptions or cross-exceptions and supporting briefs. Within 13 days from the last date on which cross-exceptions may be filed, a brief in opposition to cross-exceptions may be filed. In other words, a maximum time of 49 days, excluding any extensions of time, is provided.

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430 F. Supp. 322, 95 L.R.R.M. (BNA) 3306, 1977 U.S. Dist. LEXIS 16640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dawidoff-ex-rel-national-labor-relations-board-v-minneapolis-building-mnd-1977.