HOUSTON INSULATION CONTRACTORS ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, 339 F.2d 868

JOHN R. BROWN, Circuit Judge. Petitioner (Houston Insulation) in connection with its Petition for Review, moves for an order staying the decision and order of the Board, dated September 4, 1964, and for a restraining order against the Union (International Ass’n of Heat and Frost Insulators, and Locals 22 and 113 thereof) pending a determination of the issues involved in a full dress review by this Court. We have concluded that the stay should be granted and that the motion for the restraining order should be denied. Petitioner charged the Union with engaging in a secondary boycott in violation of § 8(b) (4) (

i) and (ii) (B). At the behest of the Board’s Regional Director acting under § 10 (l) (which empowers him to seek appropriate injunc-tive relief), Judge Ingraham of the Southern District of Texas, after conducting a full hearing, found and concluded that there was reasonable cause to believe that the Union was engaging in unlawful conduct. Accordingly, the Union Respondents were enjoined from refusing to handle materials for nonunion contractors on jobs being performed by members of the Petitioner-Association, pending a Board determination (see note 3, infra).

The Trial Examiner agreed with the Regional Director and the District Court finding the two Locals — but not the International — guilty of an unlawful secondary boycott and recommended that a cease and desist order be issued. The Board however — apparently as a matter of law, not one of credibility choices — took the view that the Union had engaged only in protected primary activity and ordered the complaint dismissed. The Petitioner thereupon instituted this proceeding seeking reversal of this decision.

In the course of this motion for interim relief, the General Counsel has expressed the purpose of seeking formal dissolution of the District Court temporary injunction. Setting forth a persuasive showing of a substantial basis for its legal contentions as they bear on the likelihood of ultimate success in this Court on the legal issue of the propriety of the Board’s order and a convincing demonstration of irreparable harm in the meantime if the Union is allowed to resume the complained of activity, Petitioner asks that the Board’s order be stayed, and an injunction pending appeal be entered.

Under the Act there can be no real question about the power of this Court to stay an order of the Board. The procedures governing a Board petition for enforcement to a Court of Appeals are set out in § 10(e). The parallel section, 10(f), grants to “[a]ny person aggrieved by a final order of the Board” the right to petition for review in a Court of Appeals. Recognition of the Court’s power to enter a stay order in a proceeding of either kind is then expressly made in § 10(g): Actually no serious contest seems to be made by the Board on the issuance of a stay.

The Board has, rather, focused its attention primarily on the asserted lack of jurisdiction in this Court to enter a restraining order at the instance of a private party. ******The Court’s power to enter a stay being clear under the Act, the only question is whether this is an appropriate case for an exercise of that power. “(

g) The commencement of proceedings under subsection (

e) or (

f) of this

section shall not, unless specifically ordered by the court, operate as a stay of the Board’s order.” (Emphasis supplied.) After a thorough examination of the papers filed by all parties, a consideration of the proceedings in the District Court and those before the Trial Examiner and Board, we have concluded, without intimating how the issues should be resolved by a panel of this Court, that there is sufficient merit to Petitioner’s position to justify preserving the status quo until the case is finally disposed of in this Court.

Were Petitioner to ultimately prevail, the beneficial effect of our decision would largely be vitiated, if while awaiting hearing and disposition, the Union were permitted to resume its activities. The effect of the stay is such that it is not necessary for this Court— assuming, but not deciding, that it has the power — to issue an injunction in order to preserve the status quo. While it is true that ordinarily a § 10(

J) injunction expires upon final adjudication by the Board, our staying the Board’s order effectually postpones its operative legal effect until enforced by this Court. Therefore Judge Ingraham s order granting a temporary injunction which was to run “pending the final disposition of the matters involved,” *and which the records of the District Clerk show to be subsisting, remains in full force and effect so long as our stay continues. No further relief is needed or appropriate. Accordingly, a stay will be entered as of the date of the application. Stay granted. .

Without now undertaking to determine whether, as urged by the Board’s brief, these wide grants of power necessarily confine interim relief to that sought by the Board, not a private party, it is evident that the following from § 10(

e) and (

f) go a long way to reinforce the power to grant a stay implied in § 10 (g). “(e) * * * Upon the filing of such petition, the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper * * * ” “(f) * * * Upon tbe filing of such petition, the court shall proceed in the same manner as in the case of an application by the Board under subsection (e), and shall have the same jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper * * Likewise § 10(

h) reflects the policy that when courts under this structure are given power to issue restraining orders, etc., the Norris-LaGuardia Act, 29 U.S. C.A. § 101 et seq., is not to be a bar. . It is unnecessary to consider whether, apart from the Act, the Court has an inherent power to enter a stay. Cf. 28 U.S.O.A. § 1651. . We do not read this language as going beyond the permissible scope of an injunction under § 10(1) — “appropriate in-junctive relief pending the final adjudication by the Board.”