United States v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America

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WINTER, Circuit Judge,

dissenting:

I respectfully dissent.

I do not agree: (i) that the Consent Decree between the IBT and the government purports to vest jurisdiction in the court-appointed Administrator and reviewing federal courts to adjudicate unfair labor practice charges brought by two IBT members against an employer under the National Labor Relations Act (“NLRA”);1 (ii) that, if the Decree so empowers the Administrator, it is valid; or (iii) that the adjudication in question is authorized by the All Writs Act.

*109I

With regard to (i), the meaning of the Consent Decree, Article VIII, Section 10(d), provides that “No restrictions be placed upon candidates’ or members’ pre-existing rights to solicit, support, distribute leaflets or literature ... or engage in general activities on employer or union premises.” Giving this language its ordinary meaning in the present context, there is no basis for finding that Yellow Freight violated its terms. The words “pre-existing rights” seem no more than a reference to rights of access previously recognized by employers through contract or past practice or decreed by enforcement orders of the National Labor Relations Board (“NLRB”). This reading accords with the language used in the Consent Decree and limits the rights of access conferred by the Decree to rights enjoyed by the IBT that the IBT may lawfully confer upon IBT members.2 However, under that reading, Yellow Freight did not violate the Consent Decree. Yellow Freight’s no-solicitation rule was in effect when the Consent Decree was signed. Clement and McGinnis thus had no preexisting right of access to Yellow Freight’s premises.

II

However, with regard to (ii), my colleagues read the language differently, based upon the Administrator’s interpretation of the words “pre-existing rights” as including “all substantive rights of union members ... under established law.” Under this reading, the Decree purports to vest jurisdiction in the Administrator to adjudicate nonemployees’ claims of access to Yellow Freight’s premises under the NLRA.

Putting aside the All Writs Act for the moment, it is a mystery to me where IBT and the government found the authority to empower the Administrator to adjudicate unfair labor practice charges involving non-parties to the Decree. This issue is not directly addressed in my colleagues’ opinion. In fact, Congress has designated exclusive procedures for the adjudication of unfair labor practice claims. I know of no theory under which the IBT and the government had the power, essentially legislative in nature, to override Congress’s explicit direction that Clement and McGin-nis file their unfair labor practice charges with the NLRB.

Not surprisingly, I also do not agree that the IBT and the government had the power to erase Yellow Freight’s right to litigate the unfair labor practice charges before the NLRB. Nor do I agree that allowing the IBT and the government to accomplish this legislative act was not a denial of due process to Yellow Freight. Yellow Freight did have hearings on the unfair labor practice charges before the Administrator and the district court. However, Yellow Freight was not accorded due process when the Consent Decree deprived it of the right to litigate unfair labor practice charges before the NLRB rather than before the Administrator. Yellow Freight had neither notice nor a hearing in the RICO proceeding as to the potential loss of its rights under federal law. If the IBT and the government had the power to erase Yellow Freight’s rights, then Yellow Freight should have been made a party defendant in the RICO action and allowed to litigate to final judgment the issue of whether the loss of such rights could be granted as relief.

Ill

This brings me to (iii), namely, the All Writs Act issue. I agree with my colleagues that, in contrast to the Consent Decree, the All Writs Act may confer jurisdiction over third parties where necessary to implement otherwise valid provisions of the Decree. My colleagues reason that the proceedings against Yellow Freight are necessary to avoid inconsistent interpretations of that Decree. If the Consent Decree merely incorporates pertinent provisions of the NLRA, however, then the only *110inconsistencies that might arise would be between the Administrator’s interpretations of the NLRA and the NLRB’s interpretations of the same statute. The apprehension that the Administrator may disagree with the NLRB as to the meaning of the NLRA, and the tacit but yet inexorable assumption that the Administrator’s view should prevail, merely highlight the illegitimacy of viewing the Consent Decree as vesting the Administrator with jurisdiction over unfair labor practices. It goes without saying that the All Writs Act does not authorize the displacement of Congress’s legislative scheme for the adjudication of unfair labor practices.

However, my colleagues’ discussion of the preemption issue implies that the Consent Decree created independent rights of access, i.e., not based on the NLRA, by IBT candidates to employers’ property. Their discussion of the preemption issue relies exclusively on cases in which claims based on other bodies of law, e.g., common law trespass claims or “where federal laws and policies other than the NLRA are implicated,” overlap unfair labor practice claims and are validly adjudicated by tribunals other than the NLRB. Those cases are neither analogous nor relevant to the instant matter unless the Consent Decree is viewed as creating a new body of law to be enforced by third parties against other third parties for purposes of the IBT election, another legislative act the IBT and the government had no power to accomplish. Moreover, in their discussion of the All Writs Act, they emphasize the “public interest” in democratizing the IBT and purging it of organized crime influence. Again, this implies that the Decree embodies legal commands beyond those found in present labor law. Whatever the implications of the opinion, however, the content of these new legal commands is not spelled out. Indeed, the Administrator’s view of his powers was limited to enforcing “substantive rights ... under established law,” (emphasis added), and my colleagues purport to apply only standards derived from the NLRA.

I know of no precedent for this expansive use of the All Writs Act. United States v. IBT, 907 F.2d 277 (2d Cir.1990), held that local unions, who were not parties to the Consent Decree but are constituent bodies of the IBT, had to litigate issues concerning the meaning of that Consent Decree in the Southern District of New York. This essentially housekeeping decision dealt solely with inconsistencies concerning the meaning of the Consent Decree, not disagreements over the meaning of a federal statute, such as the NLRA. In Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855 (2d Cir.1988), cert. denied, 489 U.S. 1077, 109 S.Ct. 1527, 103 L.Ed.2d 833 (1989), the City of Yonkers, pursuant to a consent decree entered in the Southern District, initiated condemnation proceedings in state court. Subsequently, the property owners brought actions in state courts to invalidate the proposed condemnations. We affirmed an order directing the City to remove the state court actions. Our principal concern was again the effect of inconsistent judgments with respect to the meaning of a consent decree. A secondary concern was the fear that the City of Yonkers would not vigorously defend the invalidation proceedings. Finally, in In re Baldwin-United Corporation, 770 F.2d 328 (2d Cir.1985), we upheld an injunction prohibiting states from filing civil actions against parties who were defendants in a multi-district securities litigation. We did so in order to effectuate a settlement agreement in which the plaintiffs had waived their state law claims and to ensure that states could not disrupt the agreement by asserting claims derivative of the settled claims. See id. at 336-37.

By contrast, the proceeding against Yellow Freight has nothing to do with either the risk of inconsistent decisions concerning the meaning of the Consent Decree, collusive actions by a party to the Decree, or a need to avoid derivative, duplicative actions that would unravel a class action settlement.

IV

I believe that Clement and McGinnis should have been required to file unfair labor practice charges with the NLRB. *111With the support of the Administrator, they then could have specifically requested the General Counsel to seek preliminary relief under Section 10(j). 29 U.S.C. § 160(j).

It may be that my colleagues are influenced by the fact that our court records create what might charitably be called a reasonable doubt as to the capacity of the NLRB to act with anything but, again speaking charitably, glacial speed in adjudicating unfair labor practices. See, e.g., NLRB v. Oakes Machine Corp., 897 F.2d 84 (2d Cir.1990); National Maritime Union of America, AFL-CIO v. NLRB, 867 F.2d 767 (2d Cir.1989). Nevertheless, there is litigation pending in our court indicating that Section 10(j) actions for injunctions are not unknown. NLRB v. Domsey Trading Corp., appeal docketed, No. 91-6203 (2d Cir. Aug. 23, 1991). In any event, the sorry performance of the NLRB is not for us to correct by interpretation of consent decrees between unions and the government.

I thus regard my colleagues’ decision as a profoundly troubling precedent. The reach of the decision is long but the theories on which it is based seem ill-defined and open-ended. It offers no limits to the power of parties to consent decrees to alter radically the substantive legal rights of non-parties by invoking the “public interest” and the All Writs Act. The best that can be said is that their opinion does so in the congenial factual setting of a corrupt and undemocratic union. I hope that all further references to this decision will be accompanied by the words, “That case is easily distinguishable; it involved the Teamsters.”

. Amendments to the majority opinion subsequent to receipt of the galleys from West Publishing Co. have stricken references to the consent decree as a source of authority for the majority’s decision. In part, therefore, my dissent now appears to be responding to arguments not raised by my colleagues. I am not altering the substance of the dissent for two reasons. First, such an alteration cannot be accomplished before the publishing of this decision in the hardbound volume of the Federal Reporter, Second Series. Second, because I reject the view that the All Writs Act authorized the actions of the district court, it is not inappropriate *109for me to address the question of whether the consent decree may justify those actions.

I will make one further observation. The basis for the view that the NLRA, as administered by the court officers and district court, governs the issues in the instant matter, is based upon the language of Article Eight, Section 10(d), of the consent decree. If the actions of the district court are actually justified by the All Writs Act, then there is no reason to hold that the NLRA governs the employees’ rights to hand out leaflets. The right to engage in such distribution should be determined on the basis of what is necessary to bring about the fair election contemplated by the Decree, whether or not such a right exists under the NLRA.

. I do not mean to suggest that a bright line defines the “pre-existing rights" incorporated by the Consent Decree. Indeed, I can imagine a host of definitional problems arising from the provision. Such problems, however, are not a reason to give the Decree an expansive reading.