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 ACTING NLRB GENERAL COUNSEL FRED FEINSTEIN ISSUES FOUR-YEAR REPORT ON USE OF SECTION 10(j) INJUNCTIONS

NATIONAL LABOR RELATIONS BOARD
OFFICE OF THE GENERAL COUNSEL
WASHINGTON, D.C.   20570


FOR IMMEDIATE RELEASE (R-2302)
Friday, July 24, 1998 202/273-1991
www.nlrb.gov

ACTING NLRB GENERAL COUNSEL FRED FEINSTEIN ISSUES FOUR-YEAR REPORT ON USE OF SECTION 10(j) INJUNCTIONS

In a report reviewing the use of interim injunctions during his term as General Counsel of the NLRB, Fred Feinstein today disclosed that from March 3, 1994 through March 2, 1998, the National Labor Relations Board authorized petitions for relief under Section 10(j) of the National Labor Relations Act in 292 cases and the Agency obtained a successful resolution in 88% of the cases. Traditionally, the NLRB General Counsel issues such a report on a four-year basis.

In his July 23 report to the Board, Acting General Counsel Feinstein noted that the success rate is consistent with the Board's record during previous General Counsel's terms. He stated:

Of the 292 cases authorized by the Board, 270 have been pursued to conclusion at this time. Of these, 133 were resolved by a successful settlement, either before or after a petition was filed in court. The proportion of authorized cases adjusted by settlement has remained fairly constant over the years. The 49% settlement rate experienced during my term falls between the 47% rate during General Counsel [John] Irving's term and 51% rate during General Counsel [Rosemary] Collyer's term.

The remaining 137 authorized cases were resolved by court decision, with injunctions granted in whole or substantial part in 105 cases. All together, we obtained a successful settlement or favorable court order in 238 cases, 88% of the cases pursued to a conclusion. This success rate virtually matches the 89% and 87% success rates of General Counsels Collyer and Lubbers, respectively, and exceeds the 81% success rate of General Counsel Irving.

Acting General Counsel Feinstein noted that since 1971, the General Counsels have emphasized the use of interim remedies under Section 10(j) as essential to effective enforcement of the Act. He explained:

As General Counsel, I too, realized that in certain cases the Board's normal remedies will be insufficient to effectuate the purposes of the Act. For, in the interim before being brought under general restraint by a Board order, some respondents will, unless restrained, be able to accomplish their unlawful objective. Accordingly, during my term as General Counsel, I took steps to assure that the Agency used Section 10(j) in the most effective and appropriate manner.

His key initiative was to setup a program to assure that there was consistency in how Regional Offices considered and implemented the injunctive provisions. Each Regional Office put in place a mechanism for early identification of potential 10(j) cases and a system for evaluating the need for interim relief. This effort included the establishment of a 10(j) training program for regional personnel, the production of a Section 10(j) manual on investigation and litigation of 10(j) cases, and the installation of a system to review the operation of the 10(j) program.

# # #

The Report on Utilization of Section 10(j) Proceedings March 3, 1994 through March 2, 1998 is available by contacting the Division of Information, 202/273-1991, or it can be downloaded from the agency's web site at www.nlrb.gov under the "Press Releases" button on the homepage.


OFFICE OF THE GENERAL COUNSEL

 

MEMORANDUM GC 98-10 July 23, 1998

TO: All Regional Directors, Officers-in-Charge, and Resident Officers

FROM: Fred Feinstein, Acting General Counsel

SUBJECT: Report on Utilization of 10(j) Injunction Proceedings March 3, 1994 through March 2, 1998

Attached hereto is a report that I recently sent to the Board concerning 10(j) authorizations and litigation during my term as General Counsel. I believe you will find it informative as well as helpful in your management of your 10(j) program.

The accomplishments outlined in this report are the result of hard work and dedication by you and your staffs. You can take pride that these efforts have contributed to a more effective enforcement of the Act.

Fred Feinstein
Acting General Counsel

Attachments

Distribution:
Washington - Special
Regional - Special
Release to the Public


NATIONAL LABOR RELATIONS BOARD
OFFICE OF THE GENERAL COUNSEL

TO: The Board

FROM: Fred Feinstein, Acting General Counsel

SUBJECT: Report on Utilization of 10(j) Injunction Proceedings March 3, 1994 through March 2, 1998

I. Introduction

Since 1971, the Board's General Counsels have emphasized that resort to interim remedies under 10(j) of the Act is essential to effective enforcement of the Act. As General Counsel, I too, realized that in certain cases the Board's normal remedies will be insufficient to effectuate the purposes of the Act. For, in the interim before being brought under legal restraint by a Board order, some respondents will, unless restrained, be able to accomplish their unlawful objective. Accordingly, during my term as General Counsel, I took steps to assure that the Agency used 10(j) in the most effective manner. I instituted a 10(j) initiative to assure that all Regional Offices implemented a mechanism for early identification of potential 10(j) cases and a system for evaluating the need for interim relief. We trained Regional personnel in the investigation and analysis of issues unique to the question of whether interim relief is "just and proper" in a particular case and we prepared and distributed to all offices a Section 10(j) Manual on investigation and litigation of 10(j) cases.

In the succeeding years we reviewed the operation of the 10(j) program with an eye toward making the most effective use of our resources. For example, we instituted a policy of scheduling expedited administrative hearings in cases where 10(j) relief appears warranted but significant albeit unsubstantiated defenses have been asserted in the investigation. Resort to an expedited administrative hearing allows us to evaluate, without undue delay, the strength of the case on the entire record and make a more reasoned judgment as to the propriety of 10(j) relief. Similarly, if the case is likely to settle upon the initiation of litigation, setting it for an expedited administrative hearing allows that option to be explored before initiating the 10(j) consideration process.

As a result of the 10(j) initiative, Regional offices have incorporated consideration of the need for 10(j) relief into their case-processing routine and more consistently demonstrate facility with evaluating whether interim relief is necessary in a particular case.

The nature of the 10(j) activity from March 3, 1994 through March 2, 1998 is detailed in the following report.1 I have categorized the 10(j) cases according to the framework, developed by General Counsel John Irving, of 15 situations that typically give rise to the need for injunctive relief. Part II contains general statistics on the 10(j) program, summarizing the number of cases submitted by Regional Offices to Washington for consideration of 10(j) relief, as well as those in which the General Counsel requested and the Board granted authorization to seek such relief, and the outcomes in the cases authorized. In Part II, we also analyze the types of situations in which we resorted to 10(j) during this period. Part III provides details and statistical information regarding the authorized cases in each of the Irving Categories. Part IV deals with other developments in 10(j) litigation that occurred during the report period.

II. Cases Submitted and Authorized in General

During the period covered by this report, Regional Offices submitted 708 cases with a recommendation concerning 10(j) relief to the Injunction Litigation Branch of the Division of Advice. I sought authorization to institute 10(j) proceedings in 313 of those cases, a "request percentage" of 44%.2 The Board authorized 10(j) proceedings in 292 cases, 93% of those cases. This is consistent with the Board's authorization rates for my three immediate predecessors, which ranged from 88% to 99%.3

Appendices A and B attached to this report summarize the results of the cases authorized by the Board. Appendix A is a numerical summary of the cases authorized divided into the 15 10(j) "situations". It provides, for each 10(j) Category and for the cases as a whole, the total number of cases authorized, the number settled before and after a petition was filed in district court, the number of cases in which injunctions were granted and denied and the number of cases in which changed circumstances caused us not to proceed with the litigation. Appendix B is a list of each of the cases within each 10(j) Category. In addition to identifying information about the case, it provides the outcome of the authorization.

As Appendix A shows, of the 292 cases authorized by the Board, 270 have been pursued to conclusion at this time.4 Of these, 133 were resolved by a successful settlement, either before or after a petition was filed in court. The proportion of authorized cases adjusted by settlement has remained fairly constant over the years. The 49% settlement rate experienced during my term falls between the 47% rate during General Counsel Irving's term and 51% during General Counsel Collyer's term.

The remaining 137 authorized cases were resolved by court decision, with injunctions granted in whole or substantial part in 105 cases. All together, we obtained a successful settlement or a favorable court order in 238 cases, 88% of the cases pursued to a conclusion. This success rate virtually matches the 89% and 87% success rates of General Counsels Collyer and Lubbers, respectively, and exceeds the 81% success rate of General Counsel Irving.

Fully 41% of the cases authorized during my term arose out of an organizing drive (Situation 1, 27.4%; Situation 2, 13.7%).5 This represented an increase in Situation 1 cases as compared to my predecessors: this group comprised 9.1% of the cases authorized between 1975 and 1993. Situation 2 cases, involving a request for a remedial bargaining order, remained relatively constant: this group comprised 14.9% of the cases authorized between 1975 and 1993. Other situations that gave rise to a significant number of 10(j) authorizations during my term included conduct designed to undermine an incumbent union at the bargaining table (situation 8) or away from it (situation 5).6 Some 19% of the cases authorized fell into these two categories. This was consistent with the experience under my predecessors in which these categories comprised approximately the same proportion of cases authorized. Finally, the last large group of cases (16% of the cases authorized) involved unlawful withdrawal of recognition from an incumbent union (situation 4).7 The proportion of cases in this group has steadily risen over the years that these categories have been in existence. Under General Counsel Irving, situation 4 cases comprised only 7% of cases authorized; that proportion had risen to 12% under General Counsel Hunter.

III. Types of Cases

1. Interference with organizational campaign (no majority) 8

Section 10(j) proceedings are authorized in Category 1 cases to prevent the irreparable destruction of a union's organizational campaign. In each of these cases an employer responded to an organizational campaign with serious unfair labor practices: threats, coercive interrogations, surveillance of protected activities, improper solicitation of grievances and/or grant of benefits and unlawful employee discipline, including discriminatory discharges. Such violations threaten to, or do, "nip in the bud" the union's campaign, if not immediately enjoined. Accordingly, we typically seek an order enjoining the violations alleged, as well as an affirmative order to properly reinstate any discriminatee who has suffered an unlawful discharge, layoff, transfer or more onerous work duties. See, e.g., Aguayo v. Tomco Carburetor Co., 853 F.2d 744 (9th Cir. 1988); Angle v. Sacks, 382 F.2d 655 (10th Cir. 1967).

We continued the Board's past practice of aggressively seeking interim relief in this category of cases and continued to enjoy substantial success. Of the 73 cases resolved during the period, we were successful in 65 cases. See Appendix A. Injunctions ordering the reinstatement of alleged discriminatees were obtained in several jurisdictions which had not granted such relief before. See Kentov v. Goodings Supermarkets, Inc., Case No. 95-250-CIV-ORL-19 (M.D. Fla. Orl. Div. March 28, 1995); Miller v. Saipan Hotel Corporation, d/b/a Hafadai Beach Hotel, Civil Action 95-0013 (D. No. Mariana Islands June 9, 1995). The Board also continued to be successful in obtaining reinstatement in cases involving only a single discharge where the discriminatee was a leading activist in the organizing campaign. See Dunbar v. Northern Lights Enterprises, Inc., 942 F. Supp. 138 (W.D.N.Y. 1996).

In several cases where a pattern existed of violations at multiple sites of an employer's operation, the Board authorized me to seek multi-site cease and desist and posting relief. In two cases, in which we sought nation-wide orders, adjustments were reached before court action. See Ultrasystems Western Constructors, Inc., Case 11-CA-15376 and Overnite Transportation, Case 18-CA-13394. In another case, involving employees of a janitorial service contractor, the district court granted a broad, multi-site injunction effective in buildings in Washington, D.C. and suburban Maryland at which the employer had contracts. See D'Amico v. United States Service Industries, Inc., 867 F. Supp. 1075 (D. D.C. 1994).

In several cases a pending representation petition had been blocked by the employer's alleged violations. We sought injunctive relief to restore "laboratory conditions" 9 so as to permit the prompt holding of a fair election. See, e.g., G.B. Enterprises, Inc. d/b/a Alpha Technologies, Case 19-CA-24603.

2. Interference with organizational campaign (majority)

Like the cases in the previous category, these cases arise out of an organizing campaign. In addition, the union has obtained a card majority in an appropriate unit and the Region's complaint pleads that the employer's unfair labor practices are sufficiently egregious to undermine the union's majority and preclude the holding of a fair election and thus warrant the imposition of a remedial bargaining order under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). In these cases we typically seek a broad cease and desist order, and affirmative relief similar to that in category 1 cases. In addition, to assure that the Board's ultimate remedial Gissel bargaining order will not be a nullity, i.e., for the benefit of a union totally bereft of employee support, we also seek an interim bargaining order. See generally Seeler v. The Trading Port, Inc., 517 F.2d 33 (2d Cir. 1975); Levine v. C & W Mining Co., Inc., 610 F.2d 432 (6th Cir. 1979); Asseo v. Pan American Grain Co., 805 F.2d 23 (1st Cir. 1986).

Of the 39 cases that were resolved in this category, we were successful in 33 cases.

Among the significant decisions was NLRB v. Electro-Voice, Inc., 83 F.3d 1559 (7th Cir. 1996), cert. denied 117 S.Ct. 683 (1997). The Regional Director sought interim reinstatement of discharged employees as well as an interim remedial bargaining order under a Gissel theory. The district court denied relief. The Court of Appeals reversed, finding, contrary to the district court, that the Regional Director had demonstrated a sufficient chance of succeeding before the Board on the merits of the unfair labor practice allegations and on her request for a Gissel bargaining order. 83 F.3d at 1568-1572. The appellate court further concluded that injunctive relief was just and proper to protect the union's status in the unit. Interim reinstatement of the discharged employees was warranted to remove the remaining employees' fear of further retaliation, to prevent the permanent scattering of the discharged employees and to provide the union with in-plant leadership. 83 F.3d at 1573. Further, the Court held that the interim Gissel bargaining order remedy was also just and proper to restore the status quo. 83 F.3d at 1574-1575, citing Seeler v. Trading Port, Inc., 517 F.2d at 37-38. The court concluded that "[a]bsent a bargaining order, time works on the side of the employer-perpetrator to help him achieve his illegal purpose. Such a result is not contemplated by the Act." 83 F.3d at 1575.10

Interim Gissel bargaining orders were also obtained in jurisdictions that had not previously granted such relief. See Garner v. Macclenny Products, Inc., 859 F. Supp. 1478 (M.D. Fla. 1994); Clark v. Jack Gray Transport, Inc., 2:94CV00348 (M.D. N.C. Greensboro Div. 1994); Bernstein v. Carter & Sons Freightways, Inc., 983 F. Supp. 994 (D. Kan. 1997).11

3. Subcontracting or other change to avoid bargaining obligation

These cases involve an employer's implementation of a major entrepreneurial-type decision that adversely affects unit employees: for example, subcontracting or relocating entire plants, departments, or product lines. Such changes may be discriminatorily motivated, i.e., designed either to interfere with a union organizational campaign or to escape from an incumbent union, and thus violative of Section 8(a)(3).12 The change may also be independently violative of Section 8(a)(5) if undertaken without satisfying an employer's bargaining obligation to an incumbent union.13 We seek an order restoring the prior operation and prohibiting similar conduct in the future. Such relief is necessary because, when these actions unlawfully eliminate all or large portions of an operation and the jobs of unit employees, they undermine the status of an incumbent union or one seeking recognition. Moreover, an interim restoration order preserves the Board's ability to issue (and courts' to enforce) a final order restoring operations 14 without it being too burdensome for the respondent because of the passage of time or the prior alienation of the old facility or equipment.15 Based upon these considerations, courts have granted interim injunctions in these situations. See, e.g., Maram v. Universidad Interamericana de Puerto Rico, Inc., 722 F.2d 953, 959-960 (1st Cir. 1983); Frye v. Seminole Intermodal Transport, Inc., 141 LRRM 2265, 2267 (S.D. Ohio 1992); Zipp v. Bohn Heat Transfer Group, 110 LRRM 3013, 3015 (C.D. Ill. 1982).

This category presents some of the most difficult 10(j) cases. We were successful in 12 of the 15 resolved cases.

In one case, involving an alleged discriminatory subcontracting of most of the driving work at the employer's terminal during a union organizational campaign, the district court ordered interim restoration of the driving work and the reinstatement of the terminated drivers as well as Gissel bargaining order. See Bernstein v. Carter & Sons Freightways, Inc., 983 F. Supp. 994 (D. Kan. 1997). The court concluded that the interim relief sought would cause no "undue burden" on the respondent and that further delay in remedying the alleged violations "will do nothing to further the purposes of the National Labor Relations Act." 983 F. Supp. at 1007. Another case, involving an alleged discriminatory and unilateral decision to relocate a department of a plant to another facility in a distant state, resulted in the entry of an appropriate consent injunction. See Vico Products Co., Case 7-CA-40016. In a third case, an employer decided to relocate unit work allegedly without satisfying its bargaining obligation with the incumbent union. The Board authorized 10(j) proceedings before the relocation was scheduled to occur. Upon notice of the authorization, the parties entered into negotiations and reached an agreement that permitted the relocation as scheduled. See Kerr Group, Inc., Case 13-CA-32260.

In other cases, courts concluded that, notwithstanding the validity of the Board's theory of violation, the requested interim restoration of operations was too burdensome to grant before the Board's final decision and order. See Calatrello v. Automatic Sprinkler Corporation of America, 55 F.3d 208, 214-215 (6th Cir. 1995); Miller v. LCF, Inc. (a/k/a Sprint), 147 LRRM 2911, 2917 (N.D. Ca. 1994).

4. Withdrawal of recognition from incumbent

These cases involve an employer's withdrawal of recognition from an incumbent union, where the employer does not have objective considerations to support a "good faith doubt" of the union's continued majority support among the unit employees. Often a withdrawal of recognition has been preceded by independent unfair labor practices designed to undermine employee support for the incumbent union. We seek 10(j) relief, including affirmative bargaining orders, in these cases to ensure that the unit employees will not be denied the benefits of union representation for the entire period of litigation before the Board and to prevent the irreparable injury to the union's support among the unit employees which would predictably occur if the union were unable to represent them pendent lite. See generally, Brown v. Pacific Telephone and Telegraph Co., 218 F.2d 542 (9th Cir. 1955)(as amended); Pascarell v. Gitano Group, Inc., 730 F. Supp. 616 (D. N.J. 1990); De Prospero v. House of the Good Samaritan, 474 F. Supp. 552 (N.D.N.Y. 1978).

We were very successful in this category. Of the 44 cases resolved, we were successful in 39 cases (see, e.g., Hoffman v. Hartford Hospital, 149 LRRM 2248 (D. Conn. 1995); Ahearn v. House of the Good Samaritan, 884 F. Supp. 654 (N.D.N.Y. 1995)), including in jurisdictions that had not previously granted this type of injunction (see Kaplan v. Formosa Plastics Corp., 96-228-A (M.D. La. May 13, 1996); Benson v. James Heavy Equipment Specialists, Inc., 97-Wy-1091-AJ (D. Colo. July 21, 1997)). Further, courts granted interim relief where necessary to restore and preserve the status quo even though close legal and factual issues - e.g., unit issues in the health care industry - remained to be litigated before the Board. (see Hirsch v. Konig, 895 F. Supp. 688 (D. N.J. 1995).

5. Undermining of bargaining representative

Cases in this category involve a variety of employer unfair labor practices designed to undermine employee support for an incumbent union, short of actual withdrawal of recognition. The violations can include threats, promises and grants of new benefits, the discharge of key union officers or activists, or unilateral changes in important terms or conditions of employment without satisfying the employer's bargaining obligation to the incumbent union. We seek 10(j) relief to prevent the predictable, irreparable loss of employee support for the incumbent union. See, e.g., Arlook v. S. Lichtenberg & Co., Inc., 952 F.2d 367 (11th Cir. 1992); Pascarell v. Vibra Screw Inc., 904 F.2d 874 (3d Cir. 1990); Gottfried v. Frankel, 818 F.2d 485 (6th Cir. 1987).

We enjoyed very good success under this category. Of the 37 resolved cases, we were successful in 32 cases. The several types of injunctions granted reflected the variety of cases in this category.

For example, the Board obtained, as it has in the past,16 interim relief where an employer's unilateral changes in important unit working conditions threatened the progress of the parties' contract negotiations. See Silverman v. Major League Baseball Player Relations Committee, Inc., 880 F. Supp. 246, 259, (S.D.N.Y.), affd. 67 F.3d 1054, 1062 (2d Cir. 1995) (unilateral change in baseball's free agency rules enjoined).

The Board also authorized several cases in which a mass refusal to reinstate alleged unfair labor practice strikers threatened, in our view, irreparably to undermine the parties' collective bargaining process. The Board was successful in most of these cases. See Kobell v. Beverly Health & Rehabilitation Services, Inc., 154 LRRM 2947 (W.D. Pa. 1997), affd. No. 97-3200 (3d Cir. February 18, 1998), rhg. and rhg. en banc denied (July 2, 1998) (unpublished); Kobell v. Citizens Publishing and Printing Co., 96-2366 (W.D. Pa. January 13, 1997); Sharp v. Capitol City Steel and Iron Co., CIV-95-376A (W.D. Okla. April 11, 1995). See also Nelson v. Valley Manufactured Housing, Inc., No. CY-95-3115-AAM (E.D. Wash. September 21, 1995)(alleged ULP strikers ordered reinstated to protect union's recent certification). The court denied such relief in Schaub v. The Detroit Newspapers, et al., 155 LRRM 3040 (E.D. Mich. 1997), aff'd No. 97-1920 (6th Cir. May 6, 1998).

Lineback v. Printpack, Inc., 156 LRRM 2396 (S.D. Ind. 1997) involved another set of violations designed to undermine a union that was bargaining for a successor labor contract. The union's president, an employee, had appealed to customers of the employer to support the union in its dispute with the employer. The employer discharged the union president and filed a lawsuit against the union and the president, based on this conduct, which the Director alleged was protected under the Act. The district court agreed that the Director was likely to prevail on his allegations and found interim relief was necessary to protect "the ability of employees to seek help from third parties at the critical time of a strike." 156 LRRM at 2410. The court further noted that "the termination of the union president diminishes the effectiveness of [the union] in its organizing and bargaining activities at [the employer], thereby depriving employees of their rights under the NLRA." Id.17

Finally, in a rare, though not unprecedented, situation, the Board authorized 10(j) proceedings against an employer that engaged in independent violations while it was refusing to bargain to test the Board's certification of a bargaining representative.18 In Overstreet v. Thomas Davis Medical Centers, P.C., et al., CV 97-488-TUC-WDB (D. Ariz. September 24, 1997), the district court ordered an HMO, which was testing the certification of a union to represent doctors employed there, to rescind changes in unit doctor's working conditions made without bargaining with the union. The court found this relief necessary to protect the union's nascent status as bargaining representative, concluding that "the Union's majority support and bargaining strength have been diminished as a result of Respondent's unfair labor practices. If the unfair labor practices are allowed to continue any meaningful opportunity for collective bargaining will be destroyed." The court also granted an affirmative bargaining order remedy in favor of the newly certified union.

6. Minority union recognition

Cases in this category typically involve alleged violations of Section 8(a)(2) and 8(b)(1)(A) where an employer recognizes a union which does not represent an uncoerced majority of employees in the unit. The cases may also include other forms of illegal assistance to and/or domination of a labor organization. Interim relief is needed if, absent relief, the unlawfully assisted union will become so entrenched in the unit that the affected employees will be unable freely to exercise their Section 7 rights to select or reject union representation after the Board order issues. See generally Fuchs v. Jet Spray Corp., 560 F. Supp. 1147 (D. Mass. 1983), affd. 725 F.2d 664 (1st Cir. 1983); Zipp v. Dubuque Packing Co., 112 LRRM 3139 (N.D. Ill. 1982).

In this category, we successfully resolved 2 of the 3 cases authorized.

7. Successor refusal to recognize and bargain

This category deals with employers which acquire a business and continue the "employing enterprise" with the predecessor's unionized work force but refuse to acknowledge their legal obligation to maintain the bargaining relationship that existed under the predecessor.19 In some cases, where the successor employer has discriminatorily refused to hire the predecessor's employees in a deliberate attempt to avoid any bargaining obligation, the element that the predecessor workforce has continued may be satisfied by inference that the employer would have hired the predecessor employees, absent its discriminatory motive.20 The danger of irreparable injury to statutory rights is that, as in the withdrawal of recognition situation, the employees will be denied the benefits of union representation for the entire duration of the Board proceeding and during that time employees likely will sever irrevocably their ties and loyalties to the incumbent union. See, e.g., Frye v. Specialty Envelope, Inc., 10 F.3d 1221 (6th Cir. 1993); Asseo v. Centro Medico del Turabo, Inc., 900 F.2d 445 (1st Cir. 1990); Scott v. El Farra Enterprises, Inc., 863 F.2d 670 (9th Cir. 1988).

We were extremely successful under this category. The Board was successful in all 20 resolved cases, including obtaining a bargaining order against a Burns successor in a jurisdiction which had not previously granted such relief. See Arlook v. Lockheed Georgia Employees' Federal Credit Union, 1:95-CV-2857-RLV (N.D. Ga. 1995). Several cases involved injunctions granted to remedy alleged schemes to avoid a bargaining obligation by not hiring the predecessor's unionized workforce. See Asseo v. Bultman Enterprises, 913 F. Supp. 89 (D. P.R. 1995); Nelson v. Western Plant Services, 152 LRRM 2633 (W.D. Wash. 1996); Scott v. Pacific Custom Materials, 939 F. Supp. 1443 (N.D. Ca. 1996).

8. Conduct during bargaining negotiations

In these cases one party to a collective bargaining relationship refuses to bargain in good faith in violation of Section 8(a)(5) or 8(b)(3). These cases involve a wide variety of violations, e.g., a refusal to meet for bargaining, a refusal to supply relevant and necessary information requested by the other party, an insistence to impasse during negotiations on a permissive or illegal subject of bargaining, or a course of conduct reflecting the absence of bargaining with an open mind and a sincere desire to reach an acceptable agreement. Where such violations pose the real danger of creating industrial unrest and/or stymieing the collective bargaining process, 10(j) relief is often warranted. See, e.g., Kobell v. United Paperworkers Int'l. Union, AFL-CIO, 965 F.2d 1401 (6th Cir. 1992); Silverman v. Reinauer Transportation, 130 LRRM 2505 (S.D.N.Y. 1988), affd. per curiam 880 F.2d 1319 (2d Cir. 1989)(unpublished); Hirsch v. Tube Methods, Inc., 125 LRRM 2198 (E.D. Pa. 1986).

We were extremely successful in this category, as the Board was successful in 15 of the 16 resolved cases. Calatrello v. Defiance Hospital, Inc., Case No. 3:97 CV 7683 (N.D. Ohio Western Div. March 4, 1998) involved an employer that refused to deal with one union that represented a unit jointly with another union. When the case first arose, interim relief was not necessary because the employer was complying with the parties' then current labor agreement and dealing with the second union on contract administration matters. Upon the expiration of the parties' contract, the second union agreed to bargain for a new contract and the unions did not insist that, as a condition of bargaining, the employer recognize the first union as representative. The second union did, however, designate an officer of the first union as one of the second union's bargaining agents at the table. The employer thereupon refused to meet with any union unless the designated agent from the first union was excluded. At that point, the Board argued, and the district court agreed, interim relief was necessary. The district court concluded that the employer was not privileged to refuse to meet and deal with the second union's chosen bargaining agent. It found relief appropriate because the union and the employees would suffer irreparable harm in the absence of collective bargaining for a new labor agreement.

Two cases involved alleged unlawful bargaining by unions. In United Steelworkers of America and its Locals 12775 and 13796 (Northern Indiana Public Service Co.), Case 13-CB-15398, a union was refusing to meet and discuss bargaining proposals advanced by a public utility employer. The union was also threatening to strike unless the employer acquiesced in its proposals. The Board authorized 10(j) proceedings to compel the union to bargain in good faith over legitimate proposals advanced by the employer. The matter was resolved without litigation. In Friend v. District Council of Painters No. 8, etc., 157 LRRM 2753 (N.D. Ca. 1997), a union was bargaining jointly with another union and a multi-employer association for a contract in a multiemployer unit. The union attempted to repudiate the agreement reached in bargaining and demanded that certain members of the multiemployer association bargain with it individually. It picketed and struck employers which refused to sign individual agreements with it. The Board sought, and the court granted, 10(j) relief to protect the efficacy of the multiemployer association unit and to prevent the unwarranted labor unrest.

9. Mass picketing and violence

This category encompasses cases in which a labor organization or its agents restrains or coerces employees, typically those who choose to refrain from engaging in Section 7 activities such as a strike. These violations of Section 8(b)(1)(A) include mass picketing that blocks ingress and egress to a worksite, violence and threats thereof at or away from a picket line, and damage to private property. In these cases there is, of course, a concurrent state interest which may be protected through local police authorities and the state court system. If, however, state authorities are unwilling or unable to control the situation, 10(j) relief is warranted because the threatened injury to employee statutory rights cannot be adequately remedied by a Board order due course. See, e.g., Frye v. District 1199, The Health Care and Social Services Union, 996 F.2d 141 (6th Cir. 1993); Squillacote v. Local 248, Meat & Allied Food Workers, 534 F.2d 735 (7th Cir. 1976).

Six cases in this category were resolved; four successfully.

10. Notice requirement for strike and picketing(8(d) and 8(g))

These cases involve strikes or picketing undertaken in contravention of the notice and waiting periods required by Section 8(d)(federal and state mediation) and 8(g)(notices to health care institutions). When unions engage in such violations, and their economic activity substantially impairs or threatens to impair the employer's operations, the Board's final order may be too late to restore the status quo and assure that the parties' dispute will be open to the ameliorative effects of timely mediation under 8(d), or that adequate arrangements for the continuity of patient care may be made by the affected institution under 8(g). See, e.g., McLeod v. Compress Air, etc., Workers, 292 F.2d 358 (2d Cir. 1961).

There were no authorized 10(j) cases during the period under this category.

11. Refusal to permit protected activity on private property

These cases involve an employer's interference with the right of employees to engage in protected Section 7 activity, or to receive information from nonemployees, in nonworking areas on the employer's private property. Such activity can include employee picketing or handbilling arising from a labor dispute or nonemployee efforts to disseminate organizational material to employees. Whether such efforts are protected requires balancing the employer's private property right with employees' Section 7 rights.21 When an employer's allegedly illegal conduct substantially impairs protected activity, 10(j) relief may be warranted, if an ultimate Board order granting access will be too late to permit the employees to use legitimate economic weapons while the dispute continues or to revive the organizational campaign. See Eisenberg v. Holland Rantos Co., Inc., 583 F.2d 100 (3d Cir. 1978).

No cases were authorized during the period under this category.

12. Union coercion to achieve unlawful object

These cases typically involve union conduct violative of Sections 8(b)(1)(B), 8(b)(2) or 8(b)(3) of the Act. Typically, the union insists in negotiations to the point of impasse that an employer agree to a permissive or illegal subject of bargaining, or it engages in conduct that restrains or coerces the employer in its selection of representatives for collective bargaining or grievance adjustment. Where the union's misconduct creates industrial unrest and is having a substantial adverse impact on the employer's operations, or is affecting employees in a unique and possibly irreparable manner, 10(j) relief becomes appropriate. See Boire v. I.B.T., 479 F.2d 778 (5th Cir. 1973), rhg. denied 480 F.2d 924; D'Amico v. Union of Marine & Shipbuilding Workers, 116 LRRM 2508 (D. Md. 1984).

No cases were authorized during the period under this category.

13. Interference with access to Board processes

These cases involve employer or union retaliation against employees or their union for having resorted to the processes of the Board, typically for filing charges or giving testimony under the Act. Such retaliation may include threats, discharges, the imposition of internal union discipline, or even the institution of groundless lawsuits meant to retaliate against or harass employees and their unions for their resort to the Board's processes. Such violations are often worthy of 10(j) relief, as the chilling impact of such violations may preclude other employees from filing timely charges with the Board, or from giving testimony needed in ongoing administrative proceedings. See, e.g., Humphrey v. United Credit Bureau, 99 LRRM 3459 (D. Md. 1978).

No cases were authorized during the period under this category.

14. Segregating assets

In these cases an unfair labor practice complaint being litigated before the Board will, if sustained, give rise to backpay for affected employees but the respondent begins to close down operations and/or to liquidate its physical assets without making adequate arrangements to satisfy any potential backpay order. These circumstances create a danger that the respondent's assets will be dispersed before a backpay order issues. We seek a 10(j) "protective order" to restrict the respondent's alienation of assets or require it to sequester an amount equal to the anticipated net backpay plus Board interest. See, e.g., Schaub v. Brewery Products, Inc., 715 F. Supp. 829 (E.D. Mich. 1989); Kobell v. Menard Fiberglass Products, Inc. et al., 678 F. Supp. 1155 (W.D. Pa. 1988).

We were extremely successful under this category, as all 10 resolved cases were successfully resolved.

Litigation in one case resulted in two published 10(j) decisions. In the first, Jensen v. Chamtech Services Center, 155 LRRM 2058 (C.D. Ca. 1997), the Board proceeded against respondents alleged in a Board compliance proceeding to be alter egos to a prior respondent against whom a backpay judgment had previously been enforced but not paid. The district court concluded that the administrative compliance specification supported the district court's 10(j) jurisdiction and found, based upon evidence that the 10(j) respondents were dissipating their assets, that a protective order was just and proper to protect the Board's backpay procedures. The Board sought further relief when it discovered that assets of the original 10(j) respondents had been transferred to additional persons and entities. The district court granted an ex parte temporary restraining order, pursuant to 10(j) and the All Writs Act (28 U.S.C. Section 1651(a)), to preserve these assets in the hands of the new respondents. See Aguayo v. Chamtech Services Center, 157 LRRM 2299 (C.D. Ca. 1997). This matter was finally resolved by the respondents' payment of $1 million to settle the Board's backpay claims.

In Blyer v. Unitron Color Graphics of New York Inc., d/b/a LIC Group, Inc., 98-CV-1778(JG) (E.D.N.Y. March 12, 1998), the respondent had already sold its business before the unfair labor practice trial. Its only available asset was the right to receive scheduled payments from the purchaser of its assets over the following several months. The respondent refused to hold those payments intact pending the completion of the Board proceedings. Accordingly, the Board sought, and the district court granted, an order directing that the payments be placed directly into the registry of the district court pending final Board adjudication.

15. Miscellaneous

This category includes those cases which, in the Board's judgment, require extraordinary injunctive relief and yet are not easily placed in any one of the 14 previous categories. Their common denominator is that the Board's ultimate remedial order will be unable to fully restore the status quo and thereby to undo the damage caused by the violations. See generally I Legislative History LMRA of 1947 433 (Government Printing Office 1985)(legislative history of Section 10(j)).

We were very successful under this category, as 6 of the 7 resolved cases were resolved successfully.

As in the past, we sought 10(j) relief to protect employees' activities for "mutual aid or protection" separate from ongoing union activities, where the violations threaten to irreparably "chill" the exercise of unorganized employees' right to engage in concerted protected activities.22 In Szabo v. Krist Oil Co., Inc., Case No. 2:94-CV-99 (W.D. Mich. Southern Div. July 8, 1994), the employer allegedly discharged several employees because they had concertedly protested their working conditions and presented a list of complaints to management. Based upon evidence that the employees abandoned their protected activity after the discharges, the Board sought and the district court granted an order directing interim reinstatement.

Also included under this category are several cases which concerned lawsuits alleged to be unlawful because they were baseless in law and fact and filed with a motive to retaliate against the exercise of protected activities.23 The Board authorized 10(j) proceedings to stay several libel suits filed by employers against unions and/or employees based on material published in an ongoing labor dispute between the parties. We sought relief because the continued prosecution of the suits threatened to interfere with employees' exercise of protected activities during the labor dispute. See Geske and Sons, Inc., Case 33-CA-9557-2; Citizens Publishing and Printing Co., Case 6-CA-27832; Beverly Health and Rehabilitation Services, Inc., Case 6-CA-28130 (1-3).

In another case, we sought to stay a lawsuit which attacked, as a secondary boycott under the Act, an appeal to an employer's customers to support the employees in their dispute with the employer.24 See Lineback v. Printpack, Inc., 156 LRRM 2396 (S.D. Ind. 1997).25 The district court concluded that the Regional Director was likely to succeed in proving that the union's publicity was protected speech and not an illegal secondary boycott and that the employer's lawsuit was baseless and was filed in retaliation for protected activities. The court concluded that interim relief to temporarily stay the lawsuit was just and proper as the "deterrent, in terrorem effect of the lawsuit is the irreparable effect," 156 LRRM at 2411. The court also concluded that the doctrine of primary jurisdiction also favored the issuance of an injunction, so as to grant to the Board the initial opportunity to pass on the matter before the other forum ruled in a case which essentially raised NLRA issues. 156 LRRM at 2412-2413.

IV. Other Major Section 10(j) Issues

1. Discovery

The scope of discovery continued to be an issue in 10(j) litigation during this period. The Board has always acknowledged that the discovery provisions of the Federal Rules of Civil Procedure are applicable to 10(j) proceedings. The Board itself does not initiate discovery. It seeks to limit respondent discovery consistent with the district court's limited inquiry in a 10(j) proceeding and with the expedited nature of these proceedings.

Consistent with this approach, the Board acknowledges that if the 10(j) matter is to be tried on affidavits or with live testimony, disclosure of witness affidavits and documentary evidence that it intends to rely on in the 10(j) proceeding may be appropriate. If there is a threat that disclosure of the identity of union card signers or other Board witnesses may result in retaliation, courts have granted a Rule 26(c) protective order prohibiting retaliation and limiting the persons who have access to the material. See U.S. v. Electro-Voice, Inc., 879 F. Supp. 919, 924-925 (N.D. Ind. 1995). Requests for broader discovery vary on the circumstances of the case. Compare U.S. v. Electro-Voice, Inc., 879 F. Supp. at 924 (directing disclosure of non-privileged material in Regional office file) with Dunbar v. Landis Plastics, Inc., 977 F.Supp. 169, 174-177 (N.D.N.Y. 1997), remanded for further proceedings, No. 98-6042 (2d Cir. June 10, 1998) (denying discovery).

The Board opposes requests to produce internal agency memoranda and communications on the basis that such communications are irrelevant to the issues before the district court and protected by the attorney-client privilege, the attorney work-product privilege and/or the deliberative process privilege. Similarly, the Board opposes a respondent's effort to depose a Regional Director or other Agency personnel for the same reasons and because these individuals, as Government officials, have no personal knowledge of any of the facts in the case. Many courts have agreed with this view. See, e.g., U.S. v. Electro-Voice, Inc., 879 F.Supp. at 924; D'Amico v. Cox Creek Refining Co., 133 LRRM 2092, 2096 (D. Md. 1989). See also Dunbar v. Landis Plastics, Inc., 977 F.Supp. at 174, n.6 (discovery denied included notice of deposition to Regional personnel). In NLRB v. Modern Drop Forge Co., No. 96-3735 (7th Cir. March 14, 1997) the Seventh Circuit considered the Board's appeal from a dismissal of a Section 10(j) petition because it had failed to produce the Regional Director for a deposition it believed would be confined to privileged material. The circuit court held that the appropriate practice was for the Board to make the Director available for the deposition, at which time Board counsel could object to any questions that raise privilege claims. According to the Seventh Circuit, "[t]his course of action will enable the district court to identify specific challenged questions, as opposed to merely kinds of questions." Id., slip op. at pp. 4-5. The Board followed this approach in a subsequent case, Ahearn v. Diversicare Leasing Corp., Civil No. 97-186 (E.D. KY, 1997). After the district court denied the Board's motion to quash a notice to depose the Regional Director, the Director appeared for the deposition; Board counsel objected to questions that raised privilege issues and lacked relevancy and directed the Director not to answer. The respondent moved for sanctions for the Regional Director's refusal to answer and the Board's failure to produce certain internal documents it contended were privileged. The district court effectively approved the Board's position by denying the respondent's motions for sanctions.

2. The 10(j) Standard

In recent years a conflict has developed among the circuits regarding what standard a district court should apply when considering a 10(j) petition. Historically, courts have considered whether the Board demonstrated "reasonable cause" to believe the alleged violations had occurred and whether injunctive relief is "just and proper," that is, whether interim relief is necessary to protect the remedial purposes of the Act. See, e.g., Kobell v. Suburban Lines, Inc., 731 F.2d 1076, 1078 (3d Cir. 1984); Frye v. Specialty Envelope, Inc., 10 F.3d 1221, 1224 (6th Cir. 1993). In Kinney v. Pioneer Press, 881 F.2d 485, 488-493 (7th Cir. 1989), the Seventh Circuit rejected "reasonable cause" as an independent criteria and held district courts should consider only whether 10(j) relief is "just and proper," applying traditional equitable principles in that inquiry. In 1994, the Ninth Circuit joined the Seventh Circuit in abandoning "reasonable cause" and adopting the traditional equitable standards for evaluating 10(j) cases. Miller v. California Pacific Medical Center, 19 F.3d 449, 460 (9th Cir. 1994) (en banc).26 At the same time, the Sixth Circuit declined the opportunity to change its standard. Calatrello v. Automatic Sprinkler Corp. of America, 55 F.3d 208, 212 (6th Cir. 1995).27

The conflict is less real than would initially appear, however. Considerations of equitable necessity - such as the threat of irreparable harm to the Board's remedial power and the policies of the Act, the harm an injunction may impose on a respondent and considerations of the public interest - have always been legitimate considerations under the historical "just and proper" test. Further, the district court's limited inquiry into the merits of the unfair labor practice case and its deference to the Board's expertise, represented by the historic "reasonable cause" test, are also acknowledged in the "traditional equity" circuits. See Miller v. California Pacific Medical Center, 19 F.3d at 460 (the Regional Director need only produce "some evidence to support the unfair labor practice charge together with an arguable legal theory;" the court should be hospitable even to a "novel" legal theory urged by the Director); NLRB v. Electro-Voice, Inc., 83 F.3d 1559, 1568 (7th Cir. 1997), cert. denied 117 S.Ct. 683 (the district court has no jurisdiction to pass on the merits of the unfair labor practice; the Director satisfies the threshold "likelihood of success" element by showing that his or her chance of success is "better than negligible").

3. Section 10(j) Contempt

District courts that issue Section 10(j) injunctions have the inherent power to secure compliance with their orders through adjudication of civil and criminal contempt. In civil contempt cases, the Board must show noncompliance with the order by "clear and convincing" evidence.28 A contempt order can impose additional strictures to compel compliance with the decree or direct compensation for injuries caused by non-compliance.29

During this period, we used contempt proceedings to secure compliance with 10(j) orders in several cases. For example, in Bloedorn v. Wire Products Manufacturing Corp., Civil No. 95-C-0524-C (W.D. Wisc. 1995), in response to our contempt petition, the respondent consented to entry of an adjudication that the corporation, its owner/officers, and its outside labor representative were in civil contempt of a Section 10(j) decree that required the respondent to recognize and bargain with the incumbent union pending a final Board order and reinstate employees laid off because of their union activities. The consent purgation order imposed compliance fines against each respondent; these fines were suspended upon future compliance with the contempt order and injunction. The order also provided for issuance of a writ of body attachment against the individual respondents for future failure of the company or individuals to comply with the consent order or injunction. As a result of the contempt litigation, the respondent and the union successfully negotiated a labor contract.

In Schaub v. FiveCAP, Inc., Civil No. l:96-CV-122 (W.D. Mich. April 15, 1996), we successfully obtained compliance with a Section 10(j) injunction requiring the respondent to consider discriminatorily discharged individuals for teacher or teacher aide positions as they became available. When the respondent failed to comply with this provision of the decree, we obtained a consent contempt order requiring the respondent to hire three individuals into those positions. The continued failure to comply with the order by respondent and its agents resulted in a subsequent temporary restraining order and modifications to the Section 10(j) injunction to require training to qualify one teacher for rehire and to reinstate a second teacher who was constructively discharged after being rehired.

Finally, in Asseo v. Bultman Enterprises, Inc., 951 F. Supp. 307 (1996), a Burns successorship case, the district court found the Company in civil contempt of an order requiring it to reinstate predecessor employees and bargain with the Union pending a final Board order. The court concluded that the employer failed to prove inability to pay or that it had substantially complied with the injunction, and ordered both the company and the president and majority shareholder liable for compensatory damages for net back pay of the employees.

Fred Feinstein
Acting General Counsel

Attachments


FOOTNOTES:

1 Prior General Counsels' reports have varied as to the time period covered. In some cases, the report covers the actual period of the General Counsel's term; other reports have covered the fiscal years most closely coinciding with the General Counsel's term. I have chosen the former format inasmuch as, during my term, we began issuing a separate report listing in chronological order the authorizations for each fiscal year, noting the 10(j) Category of the case and the results after authorization.

2 Comparisons of these figures with those under prior General Counsels is difficult because, before mid-1995, Regional submissions routinely included cases in which the Director recommended against seeking 10(j) authorization. In June 1995, Directors were given the discretion to decide against seeking 10(j) authorization without submitting the case to Washington. Almost all Regional submissions since that time have been recommendations to institute 10(j) proceedings.

3 Authorization rates for years before 1980 are not available.

4 One case remains pending in district court. Twenty one cases were not pursued after authorization because changed circumstances rendered injunctive relief no longer appropriate in our view.

5 Situations 1 and 2 both involve cases arising out of an organizing drive; Situation 2 involves cases in which we sought an interim remedial bargaining order in addition to other relief. See discussion infra, pp. 6-10.

6 For a more detailed discussion of these situations, see infra pp. 15-18 and 20-22.

7 For a more detailed discussion of this situation, see infra pp. 13-15.

8 Category 1 cases exclude those involving a campaign in which the union has obtained a card majority in an appropriate unit and the 10(j) petition seeks a remedial bargaining order on behalf of the union. This group is covered in Category 2.

9 See, e.g., General Shoe Corp., 77 NLRB 124, 127 (1948).

10 The Court rejected, as less persuasive, the Fifth Circuit's differing view, in Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185 (1975), cert. denied 426 U.S. 934 (1976), of the "status quo" to be maintained. See 83 F.3d at 1574-1575.

11 Carter & Sons Freightways is also significant as a Category 3 case. See discussion in that section, infra.

12 See, e.g., Statler Industries, Inc. v. NLRB, 644 F.2d 902, 907-909 (1st Cir. 1981); NLRB v. Townhouse T.V. & Appliances, Inc., 531 F.2d 826, 828-29 (7th Cir. 1976).

13 See, e.g., Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964); Olivetti Office U.S.A., Inc. v. NLRB, 926 F.2d 181, 186-87 (2d Cir.), cert. denied 502 U.S. 856 (1991); Dubuque Packing Co., 303 NLRB 386, 390-392 (1991), enfd. in rel. part 1 F.3d 24, 30-33 (D.C. Cir. 1993), pet. for cert. dismissed 114 S.Ct. 2157 (1994).

14 See, e.g., Lear Siegler, Inc., No-Sag Products Division, 295 NLRB 857, 861 (1989).

15 See Teamsters Local Union No. 171 v. NLRB, 863 F.2d 946, 957-958 (D.C. Cir. 1988), cert. denied sub nom., A.G. Boone Co. v. NLRB, 490 U.S. 1065 (1989) and the cases discussed therein.

16 See, e.g., Sheeran v. American Commercial Lines, Inc., 683 F.2d 970, 979 (6th Cir. 1982); Morio v. North American Soccer League, 501 F. Supp. 633, 639-40 (S.D.N.Y.), affd. per curiam 632 F.2d 217 (2d Cir. 1980).

17 Those aspects of the Printpack decision dealing with the allegedly baseless lawsuit are discussed infra, category 15.

18 The Board has previously obtained a 10(j) order rescinding unilateral and discriminatory changes against an employer testing certification. Advertisers Manufacturing Co. v. NLRB, 677 F.2d 544 (7th Cir. 1982).

19 See NLRB v. Burns International Security Services, 406 U.S. 272 (1972); Fall River Dyeing & Finishing Corporation v. NLRB, 482 U.S. 27 (1987).

20 See, e.g., Kallman v. NLRB, 640 F.2d 1094 (9th Cir. 1981).

21 See generally Lechmere v. NLRB, 502 U.S. 527 (1992); Four B Corp. d/b/a Price Choppers, 325 NLRB No. 20 (November 8, 1997).

22 Cf. Eisenberg v. Lenape Products, Inc., 781 F.2d 999, 1006-1008 (3d Cir. 1986)(Becker, C.J., dissenting).

23 See Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983); Geske & Sons, Inc. v. NLRB, 103 F.3d 1366 (7th Cir.), cert. denied 118 S.Ct. 46 (1997).

24 See Section 8(b)(4)(B) of the Act.

25 As noted supra, p. 16, this case also sought the reinstatement of the union president who was discharged for circulating the communications to customers.

26 The First Circuit has also adopted traditional equitable principles as the measure of the "just and proper" inquiry but has not explicitly abandoned the "reasonable cause" test. See, e.g., Pye v. Sullivan Bros., 38 F.3d 58, 63-64 and n.7 (1st Cir. 1994).

27 In unpublished decisions, the Second and Third circuits also declined to accept appellant arguments that the district court erred by applying the extant standard in that circuit. Hoffman v. Hartford Hospital, No. 95-6065 (2d Cir. March 31, 1995); Kobell v. Beverly Health and Rehabilitation Services, Inc., Nos. 97-3200 and 97-3357, (3d Cir. February 18, 1998), rehearing and rehearing en banc denied (July 2, 1998).

28 See, e.g., Squillacote v. Local 248, Meat & Allied Food Workers, 534 F.2d 735, 746-747 (7th Cir. 1976).

29 See, e.g., Local 28, Sheet Metal Workers' Int'l v. EEOC, 478 U.S. 421 (1986).

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