Case: 09-51006 Document: 00511284631 Page: 1 Date Filed: 11/04/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 4, 2010
No. 09-51006 Lyle W. Cayce
Clerk
CORNELE A. OVERSTREET, Regional Director of Region 28 of the National
Labor Relations Board, for and on behalf of the National Labor Relations
Board,
Plaintiff-Appellee
v.
EL PASO DISPOSAL, L.P.,
Defendant-Appellant
Appeal from the United States District Court for
the Western District of Texas
Before SMITH, WIENER, and ELROD, Circuit Judges.
WIENER, Circuit Judge:
Following union certification, thirteen months of bargaining, and a strike,
Plaintiff-Appellee the National Labor Relations Board (“the NLRB” or “the
Board”) filed charges of unfair practices against Defendant-Appellant El Paso
Disposal (“EPD”). The NLRB also filed a petition in the district court for
temporary injunctive relief, seeking to force EPD to (1) cease and desist from
alleged unfair labor practices, (2) recognize and bargain in good faith with the
certified union, (3) rescind unlawful unilateral changes in working conditions,
and (4) offer to reinstate the former strikers. The NLRB filed for this injunction
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pursuant to its authority under § 10(j) of the Labor Relations Management Act
(“the Act”). The district court granted the injunction. EPD appeals the
injunction, contesting (1) the court’s determination that it engaged in bad-faith
bargaining in relation to Dues Check-Off, and (2) the court’s order to reinstate
the striking workers to the same or equivalent employment. We affirm.
I. Facts & Proceedings
A. Facts
EPD is a garbage collection and disposal company incorporated in Texas
with its principal place of business in El Paso. The International Union of
Operating Engineers, Local 351, AFL-CIO (the “Union”) was certified as the
exclusive bargaining representative for EPD’s Maintenance Unit employees on
Sept 28, 2006, and for EPD’s Drivers Unit employees on October 12, 2006.
Between these dates— on October 2, 2006— the Union sent an official notice to
EPD demanding that it bargain with the Maintenance Unit employees.
The first negotiating session occurred late in January 2007. Between that
time and late November 2007, the Union and EPD held fourteen bargaining
sessions, each of which lasted for about five hours. It was difficult to schedule
these sessions because the attorney for EPD only had authority to speak on
behalf of EPD and not to enter into agreements without a management official
present.
The parties first attempted to address the non-economic issues. As of
August 9, 2007, four non-economic issues remained unresolved:
(1) Grievance/Arbitration, (2) No Strike/No Lockout, (3) Management Rights,
and (4) Dues Check-Off. The Union had proposed the Dues Check-Off clause in
the first bargaining session held in January 2007. In May 2007, the Union
offered to accept the Management Rights clause if EPD would accept the Union’s
Dues Check-Off clause. This offer was reiterated to EPD by the Union on May
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31, 2007. EPD rejected this offer without explanation and never submitted a
written counterproposal to the Union on this issue.
In September 2007, the Union informed EPD that its members had voted
unanimously to strike. The parties decided to change the focus of negotiations
from the remaining non-economic issues to the economic proposals. Early in
October 2007, after continuing to discuss the Union’s economic proposals, the
parties agreed that Gene Dupra, a management official for EPD, would meet
with the employees and ask prepared and approved questions about the
employees’ concerns, EPD’s performance, and the Union. Duprea told some
employees that he would discuss the employees’ concerns with his supervisors.
During the negotiations, EPD made unilateral work policy changes. These
included (1) requiring an employee to supply a doctor’s note to use sick leave
after a holiday, (2) transferring an employee from one driver position to another,
with a change in pay rate from hourly to incentive, and (3) suspending its
longevity bonus (a watch after ten years of service) for one employee.
At a meeting about a month later, EPD stated its belief that sufficient
progress had been made for it to present a “last, best, and final offer” at the next
meeting. The Union disagreed because both Dues Check-Off and
Grievance/Arbitration remained to be settled. EPD nevertheless presented its
last, best, and final offer to the Union in November 2007. That offer consisted
of thirty-two articles, of which only twenty-three had been mutually agreed on
previously. The non-agreed articles included Management Rights, Holidays,
Sick Leave, Uniform, Fringe Benefits, Grievance/Arbitration, No Strike/No
Lockout, Wage Increase, and Longevity Bonuses. The Management Rights
provision would grant EPD discretion in setting workplace rules, as well as
disciplining, discharging, subcontracting, and laying-off employees. A federal
mediator delivered the Union’s counter offer on several of the articles to EPD,
most of which EPD refused to accommodate.
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After that meeting, but on the same day, the Union held a general meeting
with the employees of the Maintenance and Drivers Units. The Union
negotiator told the employees that EPD “wasn’t willing to budge” on the Union’s
proposals. He then explained the difference between an economic strike and an
unfair labor practices strike, and he stated that the Union would be filing an
unfair labor practices charge against EPD. The Union members then voted
unanimously to begin a strike on November 21, 2007.
That meeting was held on November 13, 2007. At 4 a.m. the next
morning, EPD held a mandatory meeting for the drivers; no Union
representative was present. EPD summarized its final offer for the Maintenance
Unit and told the drivers that the proposed contract was for both units. EPD
then informed the drivers that if they joined the maintenance strike, they would
be permanently replaced. Prompted by a question from an employee, EPD
explained how to get rid of the Union. EPD then called a meeting with the
Maintenance Unit for November 20, 2007 to inform those employees that any of
them who struck would be permanently replaced.
The strike began at 12:01 a.m. on November 21, 2007. A total of fifty-five
workers from one or the other units joined the picket line in front of EPD’s
facility. The next day, EPD called the El Paso Police Department to complain
that the picketers were obstructing motorists’ vision and to request that the
police send officers to the picketers’ location. EPD began hiring replacement
employees that day; by the end of the week EPD had replaced all striking
workers.
Early in December 2007, the Union made an unconditional offer to return
to work. EPD rejected the offer the next day and informed the Union that it
considered the strike to be an economic one, that all strikers were permanently
replaced, and that no vacancies existed. EPD did create a preferential hiring list
of striking workers, onto which all but three of the striking workers signed. By
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the middle of May 2008, however, only two striking workers had been offered re-
employment; five replacement mechanics had left EPD. Also, two welding
positions came open in May, but these were not offered to any of the striking
workers. And, even though EPD discharged fifteen of its replacement drivers,
it did not offer any of these positions to striking workers. The few strikers hired
from the preferential hire list were treated as new hires: They were required to
fill out paperwork as if they were new hires, were offered lower wages, and were
denied longevity bonuses, such as a certificate of appreciation and a check for
$2,000 for fifteen years of service.
In mid-December 2007, fifty drivers signed a petition declaring that they
no longer wished to be represented by the Union. In December 2008, EPD
received two more disavowal petitions, both from the Maintenance Unit, with
twenty-seven signatures on each. Prior to that month, one driver filed a
decertification petition with the NLRB seeking to decertify the Union as the
bargaining representative of the Drivers’ Unit.
In March 2009, EPD granted its first wage increase in three years to the
employees in the bargaining Units. Incentive-based and non-striking drivers
received a 6.2 percent pay increase, and hourly replacement drivers received a
3.2 percent increase. EPD neither notified the Union prior to granting these
increases nor provided the Union an opportunity to bargain over these increases.
In April 2009, an Administrative Law Judge (ALJ) issued a decision on six
charges that had been filed by the Union with the NLRB between November
2007 and March 2008. The ALJ generally agreed with the Union that EPD had
violated the Act in many ways, including bad faith bargaining and dilatory
negotiating practices. The ALJ ruled that the strike was an unfair labor
practices strike and that the December 2007 disavowal petitions were tainted by
EPD’s unfair labor practices. A different ALJ heard testimony on three
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subsequent charges filed with the NLRB between November 2009 and March
2009.
B. Proceedings
Plaintiff-Appellee, Cornele Overstreet, the Regional Director of the NLRB,
filed an administrative complaint against EPD late in January 2008. In it, he
alleged that EPD had engaged in unfair labor practices under the Act in
violation of § 8(a)(1) and (5).1 At the end of April 2008, Overstreet filed another
administrative complaint against EPD, this one alleging unfair labor practices,
including practices relating to the strike and the failure to reinstate strikers
after the Union terminated the strike in December 2007. After EPD responded
to these two complaints, the ALJ issued a recommended decision and order in
April 2009, to which both parties filed exceptions. These matters are still
pending before the NLRB. Overstreet filed two other administrative complaints
that year, one in February and the other in May. Hearings on these complaints
were held in August 2009 and are still pending before the NLRB.
In July 2009, following issuance of an administrative complaint and
pursuant to § 10(j) of the Act, Overstreet filed the instant petition for injunctive
relief in the district court. EPD challenged the petition and moved to dismiss for
lack of subject matter jurisdiction. After conducting a hearing, the district court
denied EPD’s motion to dismiss and granted Overstreet’s temporary injunction,
which required EPD to offer the striking workers immediate reinstatement and
ordered EPD to recognize the Union and resume bargaining. EPD timely filed
a notice of appeal. In December 2009, this court denied a motion to stay the
injunction.
1
29 U.S.C. § 158(a)(1), (5) (2010).
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II. Analysis
A. Standard of Review
We review the district court’s determinations of subject matter jurisdiction
de novo.2 When we review injunctive relief under § 10(j), we conduct a
sequential two-party inquiry: (1) whether the Board, through its Regional
Director, has “reasonable cause” to believe that unfair labor practices have
occurred, and (2) if they did, whether injunctive relief is “just and proper.” 3 A
district court need only decide that the NLRB’s theories of law and fact are
neither insubstantial nor frivolous to rule that the Board had reasonable cause.4
We review the district court’s factual determinations for clear error and its legal
conclusions de novo.5 We review whether injunctive relief is just and proper
under an “abuse of discretion standard.”6
EPD urges that we should employ the traditional four-part equitable test
for injunctive relief, or at least require a showing of irreparable harm, when we
evaluate the propriety of injunctive relief under § 10(j).7 We have said, however,
that “[al]though traditional rules of equity may not control the proper scope of
§ 10(j) relief, some measure of equitable principles come [sic] into play.” 8 This
2
Zolicoffer v. United States Dep’t of Justice, 315 F.3d 538, 540 (5th Cir. 2003); United
States v. Tex. Tech. Univ., 171 F.3d 279, 288 (5th Cir. 1999).
3
Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185, 1188-89 (5th Cir. 1975).
4
Id. at 1189.
5
Guy Carpenter & Co. v. Provenzale, 334 F.3d 459, 463 (5th Cir. 2003).
6
Pilot Freight Carriers, 515 F.2d at 1192.
7
EPD notes that other circuits, such as the First, Fourth, Seventh and Ninth Circuits,
employ a four-part test; the Sixth Circuit, on the other hand, employs the same ‘reasonable
cause/just and proper’ standard as we do.
8
Pilot Freight Carriers, 515 F.2d at 1192-93.
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is because “[s]ection 10(j) is itself an extraordinary remedy” 9 that must be used
sparingly and then only when the NLRB, in its discretion, is concerned that
either a employer or an union has committed such unfair labor practices that
any final order of the NLRB would be meaningless and the remedial purposes
of the Act will be frustrated without an injunction to preserve the status quo.
A requirement, such as proposed by EPD, to make the NLRB show
“irreparable harm” and “likelihood of success” for § 10(j) relief would raise the
factual threshold that the NLRB must reach.10 Nothing in Pilot Freight
Carriers, or in our case law, supports replacing the test we currently use with
a hybrid that incorporates the traditional four-part test for equitable relief.
Although the principles of equity inform an evaluation for § 10(j) relief, the two
part Pilot Freight Carriers test remains the clear operative test for evaluating
such relief.11
9
Id. at 1192.
10
The test outlined in Pilot Freight Carriers almost undoubtedly does not require such
a heightened factual threshold. The Eleventh Circuit, employing Pilot Freight Carriers as its
precedential authority, held on the issue of the factual threshold necessary for § 10(j) relief:
We now make it clear that in order to prove reasonable cause, the Board must
present enough evidence in support of its coherent legal theory to permit a
rational factfinder, considering the evidence in the light most favorable to the
Board, to rule in favor of the Board.
Arlook ex rel. NLRB v. S. Lichtenberg & Co., 952 F.2d 367, 371 (11th Cir. 1992). This
threshold is significantly lower than a requirement to show ‘irreparable harm’ and ‘likelihood
of success’.
11
Indeed, the most we have said on the matter is “though traditional rules of equity
may not control the proper scope of § 10(j) relief, some measure of equitable principles come
[sic] into play.” Pilot Freight Carriers, 515 F.2d at 1192-93. In light of our silence on the issue
after Pilot Freight Carriers as well as the Eleventh Circuit’s holding, based on the same case,
that the Board must show only a minimal burden of proof, Arlook, 952 F.2d at 371, we are
satisfied that the Pilot Freight Carriers test should not be modified in this case, even if we
were free to do so under our rule of orderliness.
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B. Subject Matter Jurisdiction
EPD contends that the district court lacked subject matter jurisdiction
under § 10(j) to issue the injunction because the petition was neither considered
nor authorized by the NLRB. Alternatively, EPD claims that the district court
lacked subject matter jurisdiction because the NLRB has not had a quorum since
January 1, 2008, as a result of which the General Counsel had no authority to
petition the court for an injunction under § 10(j).
Section 10(j) of the Act states that the Board:
shall have power, upon issuance of a complaint as provided in
subsection (b) of this section charging that any person has engaged
in or is engaging in an unfair labor practice, to petition any United
States district court, within any district wherein the unfair labor
practice in question is alleged to have occurred or wherein such
person resides or transacts business, for appropriate temporary
relief or restraining order. Upon the filing of any such petition the
court shall cause notice thereof to be served upon such person, and
thereupon shall have jurisdiction to grant to the Board such
temporary relief or restraining order as it deems just and proper.12
None questions that the NLRB has the power to request a § 10(j) injunction. In
this case, however, it was the General Counsel, not the NLRB, who requested
the injunction. The NLRB had delegated its § 10(j) authority to the General
Counsel, effective December 28, 2007. The Act creates the position of General
Counsel for the Board and states that the General Counsel “shall have final
authority, on behalf of the Board, in respect of the investigation of charges and
issuance of complaints under section 160 of this title, and in respect of the
prosecution of such complaints before the Board, and shall have such other
duties as the Board may prescribe or as may be provided by law.” 13
12
29 U.S.C. § 160(j).
13
Id. § 153(d).
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A general limitation on the ability of the Board to delegate duties to the
General Counsel lies in the distinction between prosecutorial duties and
adjudicatory functions. EPD attempts to frame the Board’s petition power under
§ 10(j), and the decision whether to pursue § 10(j) relief, as an adjudicatory
function. Petition power under § 10(j) is prosecutorial in nature, however,
despite the fact that it includes the decision to seek an injunction. Other courts
have held that the NLRB may delegate only prosecutorial duties, and not
adjudicatory functions, to the General Counsel.14 Every court that has
considered the question whether the Board may delegate petition power to the
General Counsel under § 10(j) has held that it may do so.15 As the Fourth
Circuit noted in Muffley, seeking injunctive relief is prosecutorial because it is
the district court, and not the General Counsel, that ultimately grants or denies
relief after adjudicating the petition.16 The Board may delegate its petition
power under § 10(j) to the General Counsel, so the district court was within its
jurisdiction to consider Overstreet’s petition for an injunction in this case.
In its alternative contention, EPD insists that the district court lacks
subject matter jurisdiction because the Board did not have the required quorum
of members at all relevant times and was thus without the power to delegate.
Noting that § 153(b) sets a quorum at three members of the Board, and that the
14
Muffley ex rel. NLRB v. Spartan Mining Co., 570 F.3d 534, 540 (4th Cir. 2009); Flav-
O-Rich, Inc. v. NLRB, 531 F.2d 358, 363-64 (6th Cir. 1976); KFC Nat’l Mgmt. Corp. v. NLRB,
497 F.2d 298, 306-07 (2d Cir. 1974).
15
Muffley, 570 F.3d at 540 (“seeking § 10(j) relief from a district court adjudicates
nothing”); Kentov ex rel. NLRB v. Point Blank Body Armor, Inc., 258 F. Supp. 2d 1325, 1329
(S.D. Fla. 2002); Penello v. Int’l Union, UMWA, 88 F. Supp. 935, 937 (D.D.C. 1950); Evans v.
Int’l Typographical Union, 76 F. Supp. 881, 888-89 (S.D. Ind. 1948).
16
Muffley, 570 F.3d at 539-40.
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plain language of § 153(b)17 mandates that a quorum of the Board exists only
when there are at least three sitting members, EPD reasons that the General
Counsel’s delegated authority ceases during any periods that the Board’s
membership is fewer than three. To support this proposition, EPD cites the D.C.
Circuit’s recent decision in Laurel Baye Healthcare, Inc. v. NLRB,18 wherein that
court held that when the Board’s membership drops to two, it loses its quorum
and “[i]n the context of a board-like entity, a delegee’s authority therefore ceases
the moment the vacancies or disqualifications on the board reduce the board’s
membership below a quorum.” 19
The Supreme Court, however, recently decided New Process Steel, L.P. v.
NLRB,20 which implicated this issue. The Court held that when only two
members of a three-member delegee group remain, there is not a quorum and
the group loses the authority delegated to it by the Board.21 Despite similar
holdings, the Court explicitly declined to endorse the holding and reasoning of
Laurel Baye.22 Instead, on the question whether a delegee who is not a member
17
The relevant language reads:
A vacancy in the Board shall not impair the right of the remaining members to
exercise all of the power of the Board, and three members of the Board shall, at
all times, constitute a quorum of the Board, except that two members shall
constitute a quorum of any group designated pursuant to the first sentence
hereof.
29 U.S.C. § 153(b).
18
564 F.3d 469 (D.C. Cir. 2009), cert. denied, 130 S. Ct. 3498 (2010).
19
Id. at 473.
20
130 S. Ct. 2635 (2010).
21
Id. at 2644.
22
Id. at 2643 n.4 (“[W]e do not adopt the District of Columbia Circuit’s equation of a
quorum requirement with a membership requirement that must be satisfied or else the power
of any entity to which the Board has delegated authority is suspended.”).
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of the Board may continue to function after the Board’s membership dips below
three, the Court stated:
Nor does failure to meet a quorum requirement necessarily
establish that an entity’s power is suspended so that it can be
exercised by no delegee. The requisite membership of an
organization, and the number of members who must participate for
it to take an action, are two separate (albeit related) characteristics.
. . .Our conclusion that the delegee group ceases to exist once there
are no longer three Board members to constitute the group does not
cast doubt on the prior delegations of authority to nongroup
members, such as the regional directors or the general counsel. The
later implicates a separate question that our decision does not
address.23
In light of the Court’s pronouncement in New Process Steel, we feel no
compulsion to follow Laurel Baye.
When, on December 28, 2007, the NLRB delegated its § 10(j) power to the
General Counsel, the five-person board consisted of four members; there was but
one vacancy. Then, on December 31, 2007, several days after that delegation,
two of the Board’s four remaining members’ terms expired. For a significant
time, therefore, the NLRB comprised only two members (currently, the Board
is at its full strength of five members and has ratified the December 28, 2007
delegation of § 10(j) power to the General Counsel). Nevertheless, the operative
fact here is that, at the time of its delegation to the General Counsel, the Board
comprised the requisite number of members to constitute a quorum. The fact
that Board membership subsequently dipped below a quorum does not
retroactively invalidate the Board’s prior delegation.24 Therefore, the General
23
Id.
24
See Teamsters Local Union No. 532 v. NLRB, 590 F.3d 849 (10th Cir. 2009),
abrogated in part by New Process Steel, 130 S. Ct. 2635; Narricot Indus., L.P. v. NLRB, 587
F.3d 654, 658-60 (4th Cir. 2009), cert. dism’d, 79 U.S.L.W. 3015, and cert. dism’d, 79 U.S.L.W.
3016 (U.S. Sept. 16, 2010); New Process Steel, L.P. v. NLRB, 564 F.3d 840 (7th Cir. 2009), rev’d
on other grounds, 130 S. Ct. 2635 (2010); Snell Island SNF L.L.C. v. NLRB, 568 F.3d 410 (2d
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Counsel retained the § 10(j) power, despite fluctuations in the membership of the
Board.
C. The Grant of Injunctive Relief
The district court granted the injunction sought by the Board and ordered
that all fifty-five workers who were participating in the unfair labor practices
strike be reinstated. Although the EPD contests this grant of temporary
injunctive relief, we conclude that the district court did not abuse its discretion
in mandating that EPD reinstate those striking workers.
The district court employed the two-prong test from Pilot Freight Carriers.
As we noted above, this inquiry, and not a hybridization with a traditional four-
part equity inquiry, is the correct test to use when considering a § 10(j) petition.
When it did so, the district court determined that the strike was an unfair labor
practices strike, not an economic one. Strikers in an unfair labor practices strike
are entitled to immediate reinstatement to their former positions or to back pay
on an unconditional offer to work.25 The fact that EPD hired replacements does
not affect the entitlement of unfair labor practices strikers to return to work.26
As the district court determined that this was an unfair labor practices strike,
the Union and the strikers had “reasonable cause” to believe that EPD violated
§ 8(a)(1) and (3) of the Act by not reinstating the strikers when they
unconditionally offered to be reinstated.
Cir. 2009), abrogated in part on other grounds by New Process Steel, 130 S. Ct 2635; Ne. Land
Servs., Ltd. v. NLRB, 560 F.3d 36 (1st Cir. 2009), abrogated in part on other grounds by New
Process Steel, 130 S. Ct. 2635.
25
Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278 (1956).
26
In re Nortech Waste & Operating Eng’rs Local Union No. 3, 336 N.L.R.B. 554, 565
(2001).
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EPD nevertheless insists that there is no “reasonable cause” supporting
the district court’s conclusion that the strike was an unfair labor practices strike.
EPD argues that (1) the record does not support the contention that EPD
engaged in bad faith bargaining, and (2) even if there is some evidence of bad
faith, there is no causal linkage between such evidence and the strike.
To the contrary, the record contains evidence that EPD did engage in bad
faith bargaining. For example, it is an unfair labor practice for an employer “to
refuse to bargain collectively with the representatives of his employees.” 27 Both
parties are required to “meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions of employment, or the
negotiation of an agreement, or any question arising thereunder.” 28 We will
sustain a determination of bad faith as long as we “find[] support in the record
as a whole . . . even though the court would justifiably have made a difference
choice had the matter been before it de novo.” 29
The record contains a significant amount of evidence which suggests that
EPD failed to meet its responsibilities as a negotiating partner. It did not meet
at reasonable times, delayed the initial bargaining session for four months, and
refused to negotiate for more than five hours a day. EPD’s representatives often
left those meetings early to catch flights out of town and attended only fourteen
bargaining sessions over a thirteen-and-one-half month period (for a total
bargaining time of sixty hours). In addition, EPD refused to schedule sessions
with the Union unless all three negotiators could attend, and EPD failed to
negotiate in good faith by refusing to negotiate the Dues Check-Off provision,
27
29 U.S.C. § 158(a)(5).
28
Id. § 158(d).
29
Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1187 (5th Cir. 1982) (citations and internal
quotation marks omitted).
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which is a mandatory subject of bargaining under the Act.30 Further, EPD
insisted on offering a last, best, and final offer after only two meetings to
negotiate economic issues and no discussion relating to longevity bonuses.
Lastly, EPD refused to consider the bulk of the Union’s counter to EPD’s final
offer. EPD’s conduct away from the bargaining table was no better.31 As further
evidence of its bad faith, EPD instituted changes to working conditions
unilaterally and conducted unilateral interviews with employees. When we
consider all the totality of the evidence in the light most favorable to the Board,
we perceive more than “reasonable cause” for the Board to conclude that EPD
engaged in bad faith bargaining.
Contrary to EPD’s assertions, the record reflects evidence of a causal link
between EPD’s bad faith bargaining and the strike. If the Board shows that “an
unfair labor practice is a ‘contributing cause’ of a strike, then as a matter of law,
the strike must be considered as an unfair labor practice strike.”32 Morever, the
Board’s evidentiary burden is low because as long as “an unfair labor practice
had anything to do with causing the strike, it was [and will be considered by the
court] an unfair labor practice strike.”33 A causal connection, however, must be
more than employees’ mere awareness of the protected status afforded to unfair
labor practices strikers.34 Nevertheless, the burden is on the employer to show
30
See Sweeney & Co. v. NLRB, 437 F.2d 1127, 1134-35 (5th Cir. 1971) (quoting United
Steelworkers of America v. NLRB, 390 F.2d 846, 849 (D.C. Cir. 1967)).
31
Conduct away from the bargaining table is relevant to a determination of bad faith
bargaining. See In re Hardesty Co., 336 N.L.R.B. 258, 259 (2001), enforced, 308 F.3d 859 (8th
Cir. 2002).
32
NLRB v. Pope Maint. Corp., 573 F.2d 898, 906 (5th Cir. 1978) (quoting NLRB v.
Colonial Haven Nursing Home, Inc., 542 F.2d 691, 704 (7th Cir. 1976)).
33
NLRB v. Cast Optics Corp., 458 F.2d 398, 407 (3d Cir. 1972) (citation omitted).
34
See Id.
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that the strike would have occurred even if it had not committed unfair labor
practices.35
In the instant case, there was employee testimony before the ALJ that
both economics and unfair labor practices caused the strike. At two separate
Union meetings, employees expressed frustration at the slow pace of
negotiations. In response, the Union representative explained during the
meeting at which the strike was declared that he believed the strike to be an
unfair labor practices strike. In addition, Union picketers and representatives
consistently maintained that the strike was an unfair labor practices strike. As
the Board has met its minimal burden of showing a causal link between the
strike and unfair labor practices, we conclude that the district court did not
abuse its discretion in finding that such a connection existed.
Neither did the district court abuse its discretion when, under the second
prong of the Pilot Freight Carriers test, it determined that the remedy of
reinstatement was “just and proper.” Ordinarily, courts properly leave the
decision whether to reinstate strikers to the Board.36 The Board’s remedial
process may be effective even if the district court does not grant an injunction
ordering reinstatement.37 In exceptional cases, however, the district court may
employ an injunction ordering reinstatement, so as to prevent the destruction
of employee interest in collective bargaining, irreparable injury to the union’s
bargaining power, and the undermining of the effectiveness of any resolution
through the Board’s process.38
35
See Larand Leisurelies, Inc. v. NLRB, 523 F.2d 814, 820 (6th Cir. 1975).
36
Pilot Freight Carriers, 515 F.2d at 1192.
37
See, e.g., Pascarell ex rel. NLRB v. Vibra Screw, Inc., 904 F.2d 874, 878-79 (3d Cir.
1990).
38
Pye ex rel. NLRB v. Excel Case Ready, 238 F.3d 69, 74-75 (1st Cir. 2001).
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One potential problem here is the time that has elapsed between the strike
and any potential reinstatement. In Pilot Freight Carriers, we refused to hold
that the district court had abused its discretion when it refused to order
reinstatement.39 The district court in that case justified its reluctance to grant
such an injunction on the fact that the Board’s delay of three months in seeking
injunctive relief after discharge demonstrated that harm had already been
incurred and reinstatement thus would serve no purpose.40 Other circuits,
however, have affirmed grants of reinstatement to preserve the status quo ante
pending the Board’s decision.41 Even though in Muffley, eighteen months
elapsed between the employee’s discharge and the filing of the petition, the
district court was not held to have abused its discretion when it concluded the
delay was reasonable, especially given the Board’s need to wait for the ALJ to
make a decision in that complex case.42 Because the ALJ’s fact finding here
aided the district court’s adjudication of Overstreet’s petition, delay alone is not
dispositive.
Other factors support the conclusion that the district court did not abuse
its discretion in granting injunctive relief and ordering reinstatement of the
strikers. The ALJ found, and the district court agreed, that EPD’s discharge of
the strikers and failure to reinstate them was a direct cause of the anti-Union
sentiment among the workers that led to several petitions to decertify the Union
as the workers’ representative. As EPD still had not reinstated thirty-two of the
39
515 F.2d at 1193.
40
Id.
41
NLRB v. Electro-Voice, Inc., 83 F.3d 1559, 1573 (7th Cir. 1996); Angle v. Sacks ex rel.
NLRB, 382 F.2d 655, 661 (10th Cir. 1967). See also Muffley ex rel. NLRB v. Spartan Mining
Co., 570 F.3d 534, 544-45 (4th Cir. 2009) (concluding that an 18 month delay between
discharge and reinstatement was “troubling” but outweighed by other factors and affirming
a grant of reinstatement).
42
Accord Muffley, 570 F.3d at 544 (noting same).
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fifty-five striking workers, the district court found that a “large nucleus” of
Union support had been replaced because of EPD’s failure to reinstate.43 Of the
eleven Union strikers who were recalled, six had signed the disavowal petition.
These findings of fact, which are not clearly erroneous, support the district
court’s order of reinstatement as necessary to avoid severely diminishing Union
support and, with it, the ability of the Union to negotiate with EPD.
Reinstatement preserves the status quo by returning the workforce to pre-strike
level of Union support. Finally, a refusal to reinstate in this case would merely
reward EPD for its unfair labor practices, as it would gain a benefit from its
decision to deny the right of unfair labor practices strikers to be reinstated after
they stop striking.
The evidence in the record demonstrates that the court did not abuse its
discretion in holding that reinstatement was “just and proper” and equitably
necessary: Reinstatement restores the status quo ante as intended by § 10(j).
D. Dues Check-Off
EPD claims that the district court erred by ordering it to adopt the Union’s
proposed Dues-Check off provision. The court’s order states:
[EPD] 1. Enjoined and Restrained from:
...
(b) Engaging in bad-faith bargaining, including engaged in dilatory
tactics regarding the scheduling of bargaining sessions, failing and
refusing to meet regularly with the Union at reasonable intervals,
unreasonably limiting the duration of negotiating sessions, failing
to designated an agent with sufficient bargaining authority,
refusing to accede to a Dues Check-Off provision, and
presenting premature final offers to the Union:. . . .
43
See Bloedorn ex rel. NLRB v. Francisco Foods, Inc., 276 F.3d 270, 298 (7th Cir. 2001)
(refusing to reinstate strikers sends an “unmistakable message” that Union support
jeopardizes employment).
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EPD is correct that the Board cannot remedy bad faith bargaining by compelling
a party to change its position or agree to a specific proposal.44 And, the Board
concedes that the district court may not order a party to agree to a bargaining
proposal. In this context, the order’s use of “accede” creates a requirement that
EPD accept the Dues Check-Off provision offered by the Union, which is beyond
the power of the district court to require.
It is likely that the district court merely copied the ALJ’s draft of the
proposed order—which included the same language—without closely considering
the implications of using the word “accede” in this context. We assume that the
court intended to enjoin EPD from continuing to refuse to negotiate the Dues
Check-Off provision, which is within the powers of the district court and the
Board to compel. Therefore, we modify the court’s injunction 45 by replacing
“accede to” with “negotiate,” and we affirm the injunction as thus modified.
III. Conclusion
Injunctions in cases such as this are rare, as they should be. This,
however, is one of those rare instances when an injunction is appropriate, given
the actions of EPD. The district court did not abuse its discretion when it
granted an injunction to reinstate workers because it had reasonable cause to
believe that EPD had violated— and was continuing to violate— the Act, and
that it was necessary to grant the injunction to maintain the status quo ante.
The court was also well within its discretion to order EPD to negotiate Dues
44
H.K. Porter Co. v. NLRB, 397 U.S. 99, 108 (1970).
45
A panel has the power to modify an injunction. See Pendergest-Holt v. Certain
Underwriters at Lloyd’s of London, 600 F.3d 562, 576 (5th Cir. 2010) (“We modify the district
court’s injunction consistent with this opinion . . . .”).
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Check-Off with the Union. As modified, the orders of the district court appealed
from herein are, in all respects, AFFIRMED.
20