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NATIONAL LABOR RELATIONS BOARD

OFFICE OF THE GENERAL COUNSEL

WASHINGTON, D.C.   20570

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FOR IMMEDIATE RELEASE (R-2488)
Friday, May 2, 2003 202/273-1991
  www.nlrb.gov

NLRB GENERAL COUNSEL ARTHUR ROSENFELD ISSUES REPORT ON RECENT CASE DEVELOPMENTS

National Labor Relations Board General Counsel Arthur F. Rosenfeld today issued a report on casehandling developments in the Office of the General Counsel. The report is in two parts. Part I presents cases in which his office addressed various issues arising out of the Supreme Court's decision in BE & K Construction Co. v. NLRB, 122 S. Ct. 2390 (June 24, 2002). Part II is the traditional report and covers selected cases of interest that were decided during the period from September 2002 through January 2003. It discusses cases that were decided upon a request from a Regional Director or on appeal from a Regional Director's dismissal of unfair labor practice charges. In addition, it summarizes cases in which the General Counsel sought and obtained Board authorization to institute injunction proceedings under Section 10(j) of the Act.

# # #


REPORT OF THE GENERAL COUNSEL

During my term as General Counsel, I have pledged to keep the labor-management community fully aware of the activities of my office. It is my hope that this openness will encourage compliance with the Act and cooperation with agency personnel. As part of this goal, I have continued the practice of issuing periodic Reports of decisions raising significant legal or policy issues.

This is a two-part report. Part I presents cases in which my office addressed various issues arising out of the Supreme Court's decision in BE & K Construction Co. v. NLRB, 122 S. Ct. 2390 (June 24, 2002). It is clear to me that this issue is of considerable importance to practitioners and for this reason warrants expansion of this report and coverage in a separate section.

Part II is the traditional report and covers selected cases of interest that were decided during the period from September 2002 through January 2003. It discusses cases that were decided upon a request from a Regional Director or on appeal from a Regional Director's dismissal of unfair labor practice charges. In addition, it summarizes cases in which the General Counsel sought and obtained Board authorization to institute injunction proceedings under Section 10(j) of the Act.

I hope that this information will be of assistance to the labor law Bar.

_________________________
Arthur F. Rosenfeld
General Counsel


PART I:

My contacts with practitioners around the country in the months since the Supreme Court's BE & K decision has evidenced a heightened interest in positions my office is taking in BE & K cases. In response, I decided to set forth my actions in several recent cases presenting BE & K issues.

The Supreme Court's decision in BE & K addressed the circumstances under which the Board may find a lawsuit to be an unfair labor practice. After the Court's decision, I issued instructions to the Regional Directors concerning issues arising from that decision. That memorandum, dated September 20, 2002, is available on the Agency's Website (http://www.nlrb.gov/gcmemo/gc02-09.html).

Several issues remain open after the Court's BE & K decision. The cases in this report will permit the Board to clarify several of those issues, including: (1) whether the Board should adopt the standard articulated in Professional Real Estate Investors v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993), and discussed in BE & K, in determining whether a lawsuit is reasonably based; (2) if a lawsuit is reasonably based, what standard the Board should apply in determining retaliatory motive; (3) whether the filing and maintenance of a reasonably based lawsuit can nevertheless be an unfair labor practice if the evidence of retaliatory motive is strong enough; and (4) whether the Board should continue to apply footnote 5 of Bill Johnson's Restaurants v. NLRB, 461 U.S. 731 (1983), in preemption and illegal object cases.

Reasonably Based, Nonretaliatory Lawsuits

In three cases, we found that the respondent's lawsuits in state or federal court, which were ultimately unsuccessful, were nonetheless reasonably based following the dictates of BE & K because they raised material factual issues or nonfrivolous legal issues. See Bill Johnson's Restaurants v. NLRB, 461 U.S. 731, 746-47 (1983).

We found in each of the cases that the evidence did not show that the lawsuit would not have been filed "but for a motive to impose the costs of the litigation process, regardless of the outcome" - the test that the BE & K majority suggested might render a reasonably based lawsuit unlawful. See 122 S. Ct. at 2402. Therefore, we found that none of these reasonably based lawsuits violated the Act.

Case 1:

Applying the Supreme Court's decision in BE & K, we decided that an Employer's lawsuit was reasonably based where it presented a novel issue of state law and where the trial court ruled in favor of the Employer in the lawsuit, even though the appellate court later overruled that decision. We further determined that the lawsuit was not sufficiently retaliatory so as to constitute an unfair labor practice.

During a union organizing campaign, an organizer removed several bags of trash from a dumpster located on the Employer's property adjacent to a public sidewalk. The Employer filed a state court lawsuit, alleging that the action constituted burglary, conversion of property, receipt of stolen property, criminal trespass, and racketeering.

The lower court granted the Employer's motion for summary judgment and ruled that the organizer and the Union had committed criminal acts by taking the garbage without the Employer's consent. Upon appeal, however, the state appellate court held that the trash constituted abandoned property and, thus, its removal was lawful.

This case was pending before the Board when the Supreme Court's decision in BE & K issued. The ALJ had originally relied on the analysis that the Court subsequently rejected in BE & K, ruling that the Employer violated the Act because the court of appeals had dismissed the suit and because there was evidence of a retaliatory motive. After BE & K issued, the Board remanded the case to the ALJ.

On remand, we argued that, in light of BE & K, the Employer's lawsuit, while ultimately without merit, nonetheless was reasonably based. Although the state appellate court ordered summary judgment against the Employer on all claims, we concluded that the legal questions posed were not "plainly foreclosed as a matter of law" or "frivolous." See Bill Johnson's Restaurants, 461 U.S. at 746-47. Since there was no controlling legal authority, the Employer reasonably maintained that it had a privacy interest in the trash and that the trash was not "abandoned" property under state law. The Union even conceded that the case involved several substantial questions of first impression. Also, the fact that the trial court granted the Employer's summary judgment motion indicated that the Employer had a reasonable basis for believing it could prevail in the suit.

As to retaliatory motive, we concluded that there was insufficient evidence that the lawsuit would not have been filed "but for a motive to impose the costs of the litigation process, regardless of the outcome." See BE & K, 122 S. Ct. at 2402. We considered two statements: first, the Employer told an employee that it had filed a lawsuit that would keep the Union from operating; second, the Employer's counsel told Union organizers that the lawsuit would result in a $3 million judgment against the Union and that the organizers would end up working for the Employer. We decided that those statements failed to show that the lawsuit would not have been filed "but for" a motive to impose the costs of the litigation upon the Union, regardless of the outcome. We thus sought withdrawal of the complaint.

In his decision on remand, the ALJ found that the Employer's lawsuit still violated the Act. The ALJ did not discuss whether the lawsuit was reasonably based. Rather, he based his decision on Justice Breyer's minority opinion in BE & K suggesting that a reasonably based lawsuit could still be unlawful if brought as "part of a broader course of conduct aimed at harming the unions and interfering with employees' exercise of their [Section 7] rights." See BE & K, 122 S. Ct. at 2403, Justice Breyer, concurring. The ALJ concluded that ample evidence demonstrated the Employer's unlawful motivation.

We filed exceptions with the Board, arguing that the ALJ erred by failing even to discuss whether the Employer's lawsuit was reasonably based, as required by BE & K. We further argued that the ALJ erred by applying Justice Breyer's minority opinion. The majority in BE & K indicated that a reasonably based lawsuit could not be unlawful unless, at a minimum, the suit would not have been filed but for a motive of imposing the costs of litigation. Justice Breyer's broader view was clearly rejected by the majority. The case is pending before the Board.

Case 2:

In a similar case, we decided that under BE & K, an Employer's motion for attorneys' fees, including two hours spent reviewing a Board charge, was reasonably based because the employee had interjected the Board proceedings into his unmeritorious state court lawsuit.

The employee filed a state court lawsuit against his Employer alleging breach of contract, racial discrimination, and a tort claim. A magistrate dismissed the suit, and the Employee appealed to superior court. In his appeal, the employee moved for a continuance, asserting that the Board had "incorporated the majority of [his] charges into [its] forum." The superior court denied the continuance request and dismissed the employee's suit.

The Employer filed a motion with the superior court for costs and attorneys' fees based on a statute allowing for recovery when a complaint "lacks substantial justification." The accompanying detailed fee billing included two hours for review of the Board charge in response to the employee's request for a continuance. The employee filed a Board charge, contending that seeking attorney's fees associated with an unfair labor practice charge interfered with his Section 7 rights.

We concluded that the Employer did not violate the Act. When the employee sought a continuance based on his assertion that the Board proceedings were related - an assertion that the court rejected - the Employer's review of the Board proceedings was necessary and, thus, not baseless or in retaliation for any protected activity. We therefore dismissed the charge.

Case 3:

In this case, we decided that even though an Employer's lawsuit against a Union was unsuccessful, it was nonetheless reasonably based where the federal district court denied the Union's motion to dismiss and its motion for summary judgment, signaling that the case presented disputed material factual issues.

The Employer, a nonunion general contractor, submitted the lowest bid or a major city project. The Union challenged the bid, claiming that the Employer was not a responsible bidder. In response to the Union's challenge, the city investigated and found that the Employer had a history of prevailing wage law violations. The city therefore disqualified the Employer from the job.

The Employer sued the Union and the city in federal court, alleging that, under 42 U.S.C. Section 1983, the Union and the city had conspired by acting under color of state law to deny it substantive due process rights. The district court denied the Union's motion to dismiss and its subsequent summary judgment motion. After a bench trial, however, the court dismissed the lawsuit, finding that the Union did not act in concert with the city to deny the Employer its constitutional rights.

The ALJ found a Section 8(a)(1) violation because the lawsuit was "unsuccessful" and filed in retaliation for Section 7 activities. The Board adopted the ALJ's recommended order and sought enforcement in the Third Circuit. The case was pending before the Third Circuit when the Supreme Court issued its decision in BE & K. The Third Circuit granted the Board's request to remand the case to the Board for further consideration in light of BE & K. On remand, the Board asked the parties for their positions on BE & K's effect on the case.

On remand before the Board, we took the position that under BE & K, the lawsuit was reasonably based because it survived a motion to dismiss and for summary judgment, thus presenting triable issues of fact. In Bill Johnson's, 461 U.S. at 749, the Supreme Court held that where ongoing lawsuits presented triable factual issues, the Board should defer to state court and should not seek to enjoin the lawsuit under Section 8(a)(1). In light of BE & K, we can no longer rely on the mere fact that the lawsuit was ultimately unsuccessful as a justification for finding it baseless. Rather, we must independently determine whether the lawsuit was reasonably based. Since the district court found that this case presented triable factual issues, we concluded that it was reasonably based.

We further asserted that the lawsuit was not "retaliatory" under BE & K. Thus, the BE & K Court explicitly rejected the argument that reasonably based but meritless lawsuits could be found retaliatory solely because the target of the lawsuit was protected activity. Since there was no other evidence of retaliatory motive, we requested that the Board dismiss the complaint.

Baseless and Retaliatory Lawsuits

Following the Supreme Court's instructions in BE & K to determine whether a lawsuit was reasonably based, without reliance on the lawsuit's ultimate lack of success, we determined in three cases that respondents' lawsuits lacked a reasonable basis where they presented no material factual issues or nonfrivolous legal issues. See Bill Johnson's Restaurants v. NLRB, 461 U.S. at 746-47. Following the analysis set out in GC 02-09, we further concluded that BE & K's "retaliatory motive" discussion is limited to reasonably based lawsuits. We thus evaluated whether these lawsuits were retaliatory utilizing existing Board standards, which circuit courts have generally approved since Bill Johnson's.

Case 1:

In this case, we decided that an Employer's lawsuit against a Union was baseless and retaliatory where the federal district court granted the Union's motion to dismiss for failure to state a claim, where the complaint failed to plead material elements of the cause of action, and where ample other evidence showed retaliatory motive.

The Employer employed sheet metal workers who were represented by one local Union, and plumbers and pipefitters who were represented by another Local. The Employer and the Plumbers Local had engaged in some bargaining but had never reached agreement. The relationship was marked by several strikes, unfair labor practice charges, and Board decisions against the Employer.

The Sheet Metal Local, which had an agreement with the Employer, administered a job targeting program that provided signatory contractors with financial subsidies. The Sheet Metal Local began denying the Employer's requests for use of the job targeting funds. The Employer contended that the refusal to provide the job targeting funds was designed to pressure the Employer to reach agreement with the Plumbers Local.

The Employer filed suit in federal district court against both Unions based on the denial of the job targeting funds. The lawsuit alleged that, in violation of Section 8(b)(4), the Plumbers Local coerced, threatened, or otherwise restrained the Sheet Metal Local, its employees, and potential customers by forcing the Sheet Metal Local to deny the job targeting funds to the Employer. The suit also alleged that the Sheet Metal Local breached its collective bargaining agreement with the Employer by denying the funds, despite the fact that an arbitrator considered the contractual issue and reached the opposite conclusion. In its lawsuit, the Employer charged that the Plumbers Union had "filed numerous unfair labor practice charges and engaged in mini-strikes and other activities."

The district court granted the Unions' dismissal motions based on a failure to state a claim under which relief could be granted, Fed. R. Civ. P. 12(b)(6). A federal appellate court affirmed.

This case also was pending before the Board when the Supreme Court's decision in BE & K issued. An ALJ had found that the lawsuit violated the Act because it was meritless based on the court of appeals' dismissal of the suit and because there was evidence of retaliatory motive. After BE & K's issuance, the Board remanded the case to the ALJ.

On remand before the ALJ, we argued that the Employer's lawsuit was baseless because it failed to state a cause of action, thus raising no material factual issues or unforeclosed legal issues. See Bill Johnson's, 461 U.S. at 746-47. We argued that the district court found that the claims concerned primary, not secondary, conduct because the Sheet Metal Local, like the Plumbers Local, represented the Employer's employees. Further, none of the counts alleged conduct that constituted inducement within the meaning of Section 8(b)(4)(i), or threats, restraint or coercion within the meaning of Section 8(b)(4)(ii). Therefore, the lawsuit failed to plead critical elements of the cause of action. Finally, as the district court found, the Employer's allegations that the Sheet Metal Local breached its collective-bargaining agreement lacked merit because the arbitrator's contrary decision bound the parties.

In addition, ample evidence demonstrated the Employer's retaliatory motive here. The lawsuit was retaliatory because, without legal or factual basis, it attacked the Union's protected activity of acting in solidarity with another union. Ample extrinsic evidence also supported a finding of retaliatory motive, including the suit's timing, the Employer's hostility toward protected conduct, and the Employer's iteration in its complaint of other unrelated protected activity - the Plumber's Local's filing other ULP charges and going out on strike.

Case 2:

In this case, we decided that an Employer's lawsuit against a Union was baseless where the Act indisputably preempted the suit. A reasonable litigant, therefore, should have known that he had no chance of prevailing on the merits at the time he filed the suit. Because this lawsuit was not reasonably based, the Supreme Court's statements in BE & K concerning retaliatory motive were not implicated. Thus, we argued that the lawsuit was retaliatory because it attacked protected Section 7 activity.

A construction Employer was awarded a construction sub-contract from a general contractor. The general had signed a collective bargaining agreement with a Union that required all subcontractors to be signatories to the agreement. The Employer thus asked the Union if it could become a signatory. When the Union requested specific information to substantiate the Employer's claims that it had a long and successful history as a union Employer, the Employer never responded. As a result, the Employer failed to obtain a contract with the Union and lost the subcontract.

The Employer filed suit against the Union in state court alleging four claims of interference with contractual relations and a common law antitrust violation. The Employer based its lawsuit solely on the Union's refusal to enter into a collective bargaining agreement.

The state court granted the Union's motion to dismiss. The court determined that the Act preempted the four counts of interference with contractual relations and dismissed them with prejudice. The court dismissed the antitrust claim without prejudice, finding that it raised a federal issue. The Employer did not refile this claim in federal court.

This case also was pending before the Board when the Supreme Court issued its decision in BE & K. The ALJ had held that the lawsuit was without merit because it was ultimately unsuccessful and found the lawsuit retaliatory because it attacked protected Section 7 activity. The Board remanded the case to the ALJ in light of BE & K.

On remand, we filed a brief with the ALJ arguing that under the baselessness test announced in Bill Johnson's, the lawsuit was not reasonably based. The claims presented no material factual issues or unforeclosed legal issue because they were uncontrovertibly preempted.

A lawsuit is preempted when activities are "arguably subject" to Section 7 or Section 8 of the Act. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244-45 (1959). The interference with contractual relations claims stemmed from the Union's refusal to enter into a collective-bargaining agreement with the Employer. Because Section 7 protects the rights of employees to receive services from unions to negotiate new agreements, Section 7 arguably protected the Union's conduct. Because Section 8 prohibits the refusal to bargain when under a legal obligation to do so, Section 8 arguably prohibited the Union's conduct. In light of the indisputable NLRA preemption, there were no material factual issues or unsettled legal principles upon which to base the lawsuit. See BE & K, 122 S. Ct. at 2396; Bill Johnson's, 461 U.S. at 746-47.

We also argued that the Employer's state antitrust conspiracy claim was baseless. In Connell Construction Co., Inc. v. Plumbers and Steamfitters Local Union No. 100, 421 U.S. 616, 635-36 (1975), the Supreme Court held that the Act preempted state anti-trust laws attempting to regulate union organizing. Given this foreclosed legal issue, the Employer should have known that the Act preempted its cause of action. Also, under that particular state's law, no private remedy for damages existed for state anti-trust violations. Given that the Employer did not argue some reasonable basis for overruling or reconsidering this legal principle, the anti-trust claim was baseless when filed. The Board did not have to make credibility determinations or resolve legal questions to find this lawsuit baseless; the Plaintiff's complaint alone failed to state a cause of action. See Bill Johnson's, 461 U.S. at 746-47.

The lawsuit was retaliatory because it interfered with protected Section 7 activity - the Union s right to refuse to enter into a voluntary agreement. The Supreme Court's decision in BE & K did not affect this retaliatory motive analysis because this lawsuit, unlike the suit in BE & K, was baseless. Thus, evaluating the lawsuit under BE & K's parameters, we found that the lawsuit was baseless and retaliatory.

In his decision on remand, the ALJ agreed with our analysis and found that the Employer's lawsuit still constituted an unfair labor practice in light of BE & K. Thus, the ALJ agreed with that our analysis as to baselessness on both the interference with contractual relations claims and the state antitrust claim. He also found that the lawsuit attacked protected activities - the rights of employees to bargain collectively through representatives of their own choosing and to ensure the viability of a particular employer.

Case 3:

In a similar case, we decided that an Employer filed a baseless and retaliatory lawsuit where a health care Employer sought to enjoin a strike, alleging that the Union gave an improper 10-day strike notice. We found that this lawsuit was not reasonably based because the Board had indisputable jurisdiction over this issue and, thus, the Act unquestionably preempted the suit.

Three different Unions represented employees at several of the Employer's nursing home facilities. Each Union provided the employer with 10-day strike notices, required under Section 8(g) of the Act, indicating that the strike would commence in 14 days. Two days before the strike date, the Unions provided the Employer with amended notices extending the time for the commencement of the strike by 71 hours. The Unions began striking consistent with this second notice.

The Employer filed a lawsuit in federal court alleging that the Unions failed to comply with Section 8(g) because they had improperly extended the strike's commencement by 71 hours without providing another 10-day notice. The Unions moved to dismiss the Employer's lawsuit. The district court granted the motion, finding that the lawsuit was preempted by the Board's exclusive jurisdiction. A federal appellate court affirmed.

Meanwhile, before the district court had ruled, the General Counsel issued a complaint against the Employer alleging that it had violated the Act by refusing to reinstate the strikers when they made an unconditional offer to return to work. The Employer, invoking the same arguments that it raised in its federal lawsuit, argued that the strike notice failed to comply with Section 8(g). The case before the Board thus raised the identical issue as the federal lawsuit. The ALJ subsequently found that the strike was protected under Section 8(g) based on "clear and consistent" precedent and the failure to reinstate the strikers was thus unlawful. The Board later affirmed the ALJ.

We issued a complaint under Bill Johnson's alleging that the Employer's filing and maintenance of the lawsuit constituted a Section 8(a)(1) violation. The ALJ dismissed the complaint, finding that the lawsuit was not maintained for a retaliatory motive. The case was pending before the Board when the Supreme Court's decision in BE & K issued. The Board remanded the matter to the ALJ.

On remand, we argued that the lawsuit was baseless because it presented plainly foreclosed legal issues. The lawsuit was based solely on an allegation that the Unions violated Section 8(g) of the Act. Because Section 8(g)'s provisions on strike notices are an area of exclusive Board jurisdiction over which the district court indisputably lacked subject matter jurisdiction, the lawsuit was clearly baseless.

We also argued that the Employer's lawsuit was brought with a retaliatory motive. The lawsuit directly interfered with protected Section 7 activity because it sought to enjoin a strike that the Act obviously protected. Thus, since the Employer filed a baseless lawsuit interfering with protected activity, it was retaliatory. Ample extrinsic evidence also showed retaliatory motive, including the lawsuit's obvious lack of merit; its timing; and the Employer's animus toward the Union.

Preemption and Unlawful Object Cases

We decided two cases arising under footnote 5 of Bill Johnson's, where the Supreme Court noted that the baselessness/retaliatory motive analysis does not apply to lawsuits that are federally preempted or that have objectives that are illegal under federal law. 461 U.S. at 738 fn. 5. Rather, under footnote 5, the Board could enjoin these lawsuits without applying the reasonable basis/retaliatory motive analysis. Because the extent to which BE & K affected the Board's view of footnote 5 is unclear, we have presented this issue to the Board.

Case 1:

We determined that, where a nonunion contractor brought state prevailing wage and anti-kickback claims against a union contractor for accepting job targeting funds, the lawsuit was preempted by federal law.

The Union, which operated a job targeting fund, granted the Union contractor's request for job targeting funds on a non-federal, non-Davis-Bacon Act project. The nonunion contractor sued the union contractor in state court, claiming that the union contractor violated prevailing wage and anti-kickback statutes. The Ohio Supreme Court found the lawsuit preempted under Manno Electric, 321 NLRB 278 (1996). After the U.S. Supreme Court denied a petition for certiorari, the Region issued a complaint against the nonunion contractor, alleging that it had violated Section 8(a)(1) by initiating and prosecuting the lawsuit.

While the case was pending before the Board on a stipulated record, BE & K issued. The Board remanded the case to the Region.

We concluded that under well-settled Board law, the Union's job targeting program constituted Section 7 protected conduct. See Manno Electric, supra. We thus argued that the lawsuit, which alleged only state law violations, was preempted by the Act. Our argument was supported by the recent decision in Can-Am Plumbing, Inc. v. NLRB, 321 F.3d 145 (D.C. Cir. Feb. 28, 2003), where the D.C. Circuit determined that BE & K does not affect footnote 5 preemption. While the lawsuit here would unquestionably be preempted and thus enjoinable under footnote 5, the effect of BE & K on footnote 5 is not clear and the prosecution of this issue will give the Board an opportunity to address its view of BE & K's effect on footnote 5.

Case 2:

In this case, we decided that, where a collective-bargaining agreement did not contain a union security clause, a Union's lawsuit seeking a "fair share" of dues from a non-member had an illegal object under footnote 5 of Bill Johnson's and thus violated Section 8(b)(1)(A).

The Union sent a notice to the Employer's nonunion unit employees, informing them that employees covered by a union-security clause could be required to become "financial core payers," paying only for activities germane to collective-bargaining. The Union then brought a lawsuit in state court seeking the charging party employee's "fair share" of union dues. The court granted judgment for the Union and required the employee to pay dues. The employee filed an appeal, which was pending when we decided this case.

We concluded that under Bill Johnson's, the Union violated Section 8(b)(1)(A) by filing and maintaining the lawsuit to recover dues and fees because the lawsuit had an objective that was illegal under federal law. In Golf Officials (PGA Tour), 317 NLRB 774, 778 (1995), the Board held that a suit to recover dues and fees in the absence of a union security clause had an illegal object because Congress had decided that such dues and fees were not recoverable under the Act. Here, as in PGA Tour, there was no contractual provision permitting the Union to require the payment of dues by nonmembers. The Union's lawsuit thus had an illegal object under footnote 5 of Bill Johnson's. Again, the Board will have an opportunity to address the continued applicability of footnote 5.

PART II:

EMPLOYER INTERFERENCE WITH PROTECTED ACTIVITIES

Denial of Employee Representative

In this case, we decided that a nonunion Employer unlawfully denied an employee's request to have a coworker representative go with her to a meeting over the employee's appeal of her discharge.

The Employer discharged the employee for unexcused absences. The employee requested an appeal of the discharge under the Employer's Dispute Resolution Procedure. That procedure allowed an employee to appeal a discharge directly to the plant manager, who reviewed the reasons for the termination and heard any documentary evidence or testimony offered by the employee. The plant manager could overturn the discharge decision, and his decision would be final and binding on both parties.

As the employee's appeal proceeded to a meeting with the plant manager, she requested that she be allowed to bring a coworker representative. The Employer replied that she could not. At the meeting, the plant manager reviewed the employee's file, an internal report detailing her attendance problems, and documents the employee attached to her appeal form. The employee argued that her attendance points had been miscalculated and submitted new documents on her behalf to the plant manager. After reviewing the documents, the plant manager denied the employee's appeal.

We first decided that, as an employee not represented by a union, this employee had a right to a coworker's presence at an investigatory interview. We relied upon the D.C. Circuit's decision in Epilepsy Foundation of Northeast Ohio v. NLRB, 268 F.3d 1095 (2001), enfg. 331 NLRB 676 (2000), in which the court agreed with the Board that the Weingarten right (NLRB v. J. Weingarten, 420 U.S. 251 (1975)) is "grounded in the language of Section 7 of the Act," so that an employee's request for a coworker's presence at an investigatory interview is concerted action for mutual aid and protection.

We then decided that the meeting at which the employee appealed her termination to the plant manager was an investigatory interview. We noted that one of the potential outcomes of the appeal was that the plant manager could reverse the termination decision. See Henry Ford Health System, 320 NLRB 1153 (1996). The appeal meeting therefore was investigatory because the termination decision was not final until the appeal procedure was completed.

EMPLOYER DISCRIMINATION

Permanent Replacement of Strikers

In this case, we decided that striker replacements were mere temporary replacements based upon Target Rock Corp., 324 NLRB 373, holding that replacements are not permanent where they are "at will" employees who can be terminated at any time. However, we also decided to argue that the Board should overrule Target Rock, to the extent it holds that a statement of "at will" employment can, by itself, demonstrate non-permanent status.

After the Union was certified in our case and the parties were unable to agree on an initial contract, the Union went out on strike. The Employer began hiring replacement employees. These employees completed the Employer's standard application forms, which provided no information about whether the jobs were temporary or permanent. However, the Employer sent a letter to each striking employee stating that it was hiring permanent replacement employees, and that the strikers must report to work immediately or risk being permanently replaced.

At some point after being hired, each striker replacement was asked to sign a form that stated that the replacement was accepting employment as a "permanent replacement" but that he or she understood that employment could be terminated at any time, with or without cause. The Union later made an unconditional offer to return to work. The Employer replied that it would only place the returning strikers on a preferential recall list because it had hired permanent replacement employees.

An employer can establish that striker replacements are permanent by showing that the replacements were regarded by both themselves and the employer as having received their jobs on a permanent basis. Consolidated Delivery & Logistics, 337 NLRB No. 81, slip op at 3-4 (2002). Where the replacements' status is ambiguous, e.g., the employer gives contradictory signals, the replacements are considered temporary. Harvey Manufacturing, 309 NLRB 465 (1992).

In Target Rock, the replacements were told they were "permanent, at-will employees unless the NLRB considers you otherwise, or a settlement with the Union alters your status to temporary replacement." The Board found that the replacements were temporary because the employer's use of the term "permanent" did not overcome the ambiguity created by the employer's other characterization of their employment as "at-will". In a concurrence, Member Higgins agreed that the totality of the evidence supported a finding that the replacement employees were temporary. Higgins noted that the ad for striker replacements stated that these positions could lead to permanent full time status; the employer told the union that the replacements were temporary; and the employer repeatedly stated to the union and to the employees that it would discharge the replacements if the strikers offered to return. Higgins disagreed with the Board majority conclusion that the replacements' "at-will" status indicated that they were temporary. Rather, Higgins argued that the term "permanent replacements," in the context of labor law, connotes only an intention to retain the replacements after strikers offer to return, and does not indicate a binding, unconditional promise to give up the employer's at-will employment rights.

 

In our case, the replacements signed the Employer's form signed stating that they were permanent; the Employer's letter to striking employees stated that it was hiring permanent replacements; and there were no statements, such as in job ads or applications, that contradicted the message of permanent status. Apart from the "at-will" language in the replacement form, the Employer and the replacements had a clear, mutual understanding that the replacements were permanent. However, because of the "at will" language in the replacement form, we decided to issue complaint and argue that the replacements were temporary under the rationale of Target Rock.

We also decided to argue to the Board, consistent with the concurrence in Target Rock, that "at will" language merely serves as a reminder to employees of the employer's already existing right under state law to terminate them with or without cause, and does not create an ambiguity about their permanent status. We therefore argued that the Board should overrule Target Rock to the extent it holds that a statement of "at will" employment can, by itself, demonstrate non-permanent status, and find that the Employer's refusal to reinstate the returning strikers was lawful.

EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH

Withdrawing Recognition Based Upon Antiunion Petition

We decided here that a successor Employer lawfully refused to recognize the incumbent Union based on an antiunion petition that had been signed by a majority of the predecessor's employees before the Employer had hired them and began operations.

The predecessor had a long-standing bargaining relationship with the Union. After the predecessor announced the sale of its business to the Employer, rumors began circulating that the Employer was antiunion and might hire less than a majority of the predecessor's employees in avoid a bargaining obligation with the Union. These rumors had not been started by the Employer.

The Employer sent a letter to the employees stating that it was accepting employment applications from them, but was also running an ad for applicants and considering applicants from its other locations. All the predecessor employees applied for positions with the Employer. Some of the predecessor employees then began circulating an antiunion petition stating:

We, the undersigned, have voted to voluntarily leave the [Union] on the understanding that we will be considered for employment by [the Employer].

The petition eventually was signed by a majority of the predecessor employees. The following week, the Employer announced that it had hired a majority of these employees. When the Union then requested recognition, the Employer refused citing the antiunion petition.

We decided that the Employer lawfully refused to recognize the Union because we had objective facts to show that the Union actually had lost majority support.

Under Levitz Furniture Company, 333 NLRB No. 105 (2001) an employer who withdraws recognition from an incumbent union must show that the union suffered an actual loss of majority support. The Board recently held that the rule in Levitz is applicable to a successor. See MV Transportation, 337 NLRB No. 129, (2002), overruling St. Elizabeth Manor, 329 NLRB 341 (1999). Therefore, the successor Employer in our case was free to assert that the Union had lost its majority status.

The Employer's evidence of a loss of majority consisted of the language in the antiunion petition, and the context in which it was signed. This evidence indicated that employees signed the petition in order to increase their chances of obtaining employment with the Employer. We decided that the evidence was sufficient to show a loss of majority.

We first decided that the employees' motives for repudiating the Union were immaterial. The Employer had not started nor spread the rumors that a repudiation of the Union would increase the employees' chances of hire by the Employer. We then decided that it was irrelevant that the language of the petition did not specify, in literal terms, that employees no longer desired Union representation. Proof of loss of majority support does not require any particular words so long as the basic thrust of the group message is the repudiation of the union as bargaining representative.

We noted that the Board has found that petitions with similar language did not show an unequivocal intent to repudiate the union. See, e.g., Vic Koenig Chevrolet, 321 NLRB 1255, 1260 (1996), enf. denied in relevant part 126 F.3d 947 (7th Cir. 1997), where an employee ballot asking "[d]o you wish to remain in the Union?" was found not sufficient to show a "good-faith doubt" of the union's majority status. However, cases such as this were decided under pre-Levitz Board law, which evaluated withdrawals of recognition based on the employer's "good-faith doubt." The Board's decision in Levitz requires that a union's representative status should be resolved by evaluating all objective facts concerning its majority support. Based upon all the evidence in our case, the Union had in fact lost its majority status. We therefore decided that the Employer had lawfully withdrawn recognition.

Successor Employer After Bankruptcy

In another case, we decided that the successor Employer lawfully changed terms and conditions of employment after taking over a nursing home operated by a predecessor employer who had filed for Chapter 11 bankruptcy.

On December 31, 2001, the predecessor and the successor Employer entered into an agreement to transfer the nursing home to the Employer upon approval of the bankruptcy court. The transfer agreement provided that the Employer would manage the facility pending approval of the transfer, but that the predecessor would remain the employer of the employees during this interim period. The transfer agreement also provided that the predecessor would ask the bankruptcy court to reject its collective-bargaining agreement with the Union.

The Employer took over management of the nursing home on December 31, and operated it under the predecessor employer's state license until it obtained its own license approximately one year later. The Employer commenced operations without any changes in terms and conditions of employment. However, prior to approval of the transfer agreement by the bankruptcy court, the Employer informed the Union that it would not assume the collective-bargaining agreement and that it planned to subcontract out all ancillary work. The Employer also stated that it would be making changes to the terms and conditions of employment when it hired employees.

When the bankruptcy court finally approved the transfer, the Employer subcontracted out the ancillary work and required the remaining bargaining unit employees to submit job applications for their positions. The Employer also informed employees of certain changes in their conditions of employment. The Employer eventually hired a majority of its employees from the predecessor's workforce, under the new terms and conditions of employment, and recognized the Union as their representative. We decided that the Employer had acted lawfully in instituting its own terms of employment.

No one disputed that the successor employer was required to bargain with the Union as a Burns successor. NLRB v. Burns, 406 U.S. 272 (1972). However, we decided that the Employer did not become a Burns successor until the bankruptcy court approved the transfer of operations and the successor became an employer of the bargaining unit employees in its own right. In reaching this conclusion, we decided that our case was distinguishable from the Board decisions in Specialty Envelope, Co., 321 NLRB 828 (1996), enfd. in part, revd. in part sub nom. Peters v. N.L.R.B., 153 F.3d 289 (6th Cir. 1998), and Golden Cross Health Care, 314 NLRB 1201 (1994), review denied, 87 F.3d 1318 (9th Cir. 1996).

In Specialty Envelope, the Board held that a court appointed receiver became a Burns successor on the same day it took over operations of a company with the intent to purchase it. However, unlike the receiver in Specialty Envelope, the successor Employer here did not have court approval at the time it took over the facility. The Employer was simply acting as a manager pending approval of the transfer agreement by the bankruptcy court. In Golden Cross, the new owner had executed agreements to lease and operate a nursing home contingent on acquiring the necessary license. The Board held that the new owner became a Burns successor prior to receiving its license because it effectively managed and controlled the operations during the interim period. However, Golden Cross did not involve a bankruptcy proceeding. And in that case, the new owner had at least a "respectable certainty" that it would secure the necessary license. In our case, the Employer did not have a "respectable certainty" that the bankruptcy court would approve the transfer of the nursing home. We therefore decided that, under the special circumstances of this bankruptcy where the predecessor is unable to operate the business and the successor employer managed the facility on its behalf, the Employer did not become a Burns successor until the bankruptcy court approved the transfer agreement.

We then decided that the Employer was free to set initial terms and conditions of employment when it finally became a Burns successor after the bankruptcy court had approved the transfer. The Employer informed the union that it was not assuming the collective-bargaining agreement and that it intended to subcontract out certain bargaining unit work. The Employer also informed the employees of new terms and conditions of employment and had required them to fill out job applications. In these circumstances, the successor Employer could establish the new terms and conditions of employment.

Withdrawal of Recognition

During Long Term Bargaining Agreement

In this case, we decided that the Employer unlawfully withdrew recognition from the Union during the fourth year of the parties' five-year contract, despite evidence that the Union had lost majority support.

The Employer and the Union were parties to a collective-bargaining agreement effective from January 31, 1999 through January 31, 2004. On February 4, 2002, during the fourth year of the agreement, an employee filed a decertification petition seeking a Board election. The petition was supported by statements signed by a majority of employees. The statements read stated: "I do not want [the Union] to continue to represent me as my collective bargaining agent with my employer." Based on these employee signed statements, the Employer withdrew recognition.

This case involved an issue of first impression: an employer's withdrawal of recognition during a long term contract. We decided that, when a contract is for a term longer than three years, the contract bars an employer withdrawal of recognition even after its third year.

The Board has held that a union's majority status cannot be questioned during the life of a three-year contract. General Cable Corp., 139 NLRB 1123 (1962). The Board has also held that a longer term contract acts as a bar to an election petition filed by either the employer or by the incumbent union during its entire term. Montgomery Ward & Co., 137 NLRB 346, 347 (1962). However, a long term contract does not bar an election petition filed by either an employee or a rival union after the third year.

In Montgomery Ward & Co., the Board explained that the sole reason for the allowing disruption of a longer term contractual relationship would to give effect to the employees' right to freedom of choice. Therefore, at the end of the third year of a long term contract, the Board will conduct an election only if either the employees themselves or a rival union files a petition. The Board will not permit the employer or incumbent union to take advantage of contract benefits and obligations with the knowledge that they also may negate those contractual benefits and obligations by filing an election petition.

We decided that, since the Board would not allow an employer to file an election petition here, after the third year of the long term contract, it would not be reasonable to allow the Employer to unilaterally withdraw recognition at that time. As the Board explained in Montgomery Ward & Co., the sole reason for allowing possible disruption of a contractual relationship is to give effect to the employees' right to freedom of choice. Here, the appropriate way to give affect to that employee right was to have an election pursuant to the employees' decertification petition. Even though the Employer had evidence that the Union had lost majority support, we decided that the Employer violated the Act when it unilaterally withdrew recognition in the fourth year of the parties' five-year contract.

The normal remedy in a withdrawal of recognition case is a bargaining order, which would prevent any election for some period of time. See Caterair International, 322 NLRB 64 (1996). Our case involved a pending decertification petition signed by a majority of the employees. We therefore decided that the appropriate remedy in this case would be a simple cease and desist order. Such an order would not delay the processing of the decertification petition, which would provide the fairest resolution of the Union's majority status.

Information Related to Pending Charge

In this case, we decided that the Employer lawfully refused to supply the Union with requested information concerning the Employer's relationship with another company, because the information was closely related to a pending unfair labor practice charge concerning that relationship.

The Employer notified employees and the Union of a plan to transfer to a management company all Employer operations. The Employer also stated that the management company would assume the Employer's bargaining agreement obligations. The Union filed a grievance and also requested information to determine whether the management company constituted a successor, alter-ego, or a joint employer with the Employer.

The requested information included: (1) the names, ages, addresses, phone numbers, job classifications, job descriptions and work hours of all employees; and (2) information relating to the relationship between the Employer and the management company. The Union then filed an unfair labor practice charge alleging that the Employer had unlawfully contracted out bargaining unit work to the management company. The Employer refused to provide any of the requested information stating that all inquiries regarding labor relations matters should be directed to the management company.

We noted that the Union's request for employee names, ages, addresses, work hours, telephone numbers, job classifications and job descriptions involved information which was presumptively relevant and therefore must be furnished, upon request. See, e.g., V&S Schuler Engineering, 332 NLRB No. 118 slip. p. at 1 (2000); Curtis-Wright Corp., 145 NLRB 152 (1963), enfd. 347 F.2d 61 (3rd Cir. 1965). The Union made its information request for this presumptively relevant information before the Employer had transferred the employees to the management company. Since the Employer had a bargaining relationship with the Union at that time, the Employer could not discharge its obligation to furnish that information by merely referring the Union to the management company.

However, we decided that the Employer had no obligation to furnish the other information, relating to the relationship between the Employer and the management company, because it was closely related to a pending unfair labor practice charge. Pepsi-Cola Bottling Company, 315 NLRB 882 (1994), enfd. in part on other grounds, 96 F.3d 1439 (4th Cir. 1996). The Board's procedures do not provide for pre-trial discovery. See, e.g., Union-Tribune Publishing, 307 NLRB 25 (1992), enfd. on other grounds, 1 F.3d 486 (7th Cir. 1993). The information concerning the relationship between the two companies was intended to help the Union establish that the Employer and the management company might be alter-egos or joint employers, in support of the Union's contract repudiation unfair labor practice charge. We therefore decided that the Employer lawfully refused to supply this information.

SECONDARY BOYCOTTS

Inflated Rat as "Signal Picketing"

In another case, we decided that the Union's conduct of deploying an inflated rat surrounded by individuals wearing Union jackets amounted to unlawful "signal picketing."

The Employer was a general contractor at two construction sites where other contractors, union and non-union, were also working. A Union agent informed the Employer that he would "take [the Employer] down if it doesn't go union." Immediately thereafter, large inflated rats accompanied by 30 individuals wearing Union jackets arrived at both job sites. The Employer was not specifically identified by this Union demonstration until more than 20 days later, when the Union also began distributing handbills that identified the Employer.

While the inflated rats were present, some supplier drivers refused to make deliveries. One supplier told the Employer that when his drivers see rats, they understand that there is a "job action" and that they cannot cross the "picket line." In addition, employees of some on site subcontractors left the sites or refused to go onto the sites because they would not cross the "picket line." We decided that the Union's conduct amounted to unlawful "signal picketing" in violation of Section 8(b)(4)(i).

Several neutral employees had stated that they considered the mere presence of an inflatable rat to symbolize that a job action or labor dispute was present at the site. We also noted that the "rat" is a well-known symbol associated with labor disputes, and that "rat" is a synonym for the word "scab." See Occidental Chemical, 294 NLRB 623 (1989); Marquis Elevator Company, Inc., 217 NLRB 461 n. 2 (1975). This widespread understanding is also reflected in the New Shorter Oxford English Dictionary 2480 (4th ed. 1993), which defines "rat" as a "worker who refuses to join a strike or who takes a striker's place." Modern news sources also report use of the rat as a well-known symbol of labor unrest. See Ashley McCall, Strike at Dynamic Metal Ongoing, SOUTH BEND TRIBUNE, IND., Dec. 2, 2002, 2002 WL 104377275 ("40 or so members of Local 509 erected a symbol of that [labor dispute] frustration by inflating a 15-foot plastic rat in front of the Dynamic Metal building"); Romy Varghese, Information Picket Halts Work on Project, THE RECORD, BERGEN COUNTY, NJ, June 13, 2002, 2002 WL 4661545 (Carpenters, Local 124 used the "rat as a symbol of protest ..."); and Mark Harrington, A Show of Support in Patchogue, Backing Pledged by Legislator, Labor Federation, NEWSDAY, INC., Aug. 16, 2000, at A-55, 2000 WL 10028693 ("[CWA, Local 1108] used a giant inflatable rat as the symbol of a company they accuse of wanting to transfer jobs to remote, low-wage locations and non-union contractors"). Finally, television media has used the rat as a symbol of labor unrest in episodes depicting labor disputes. See e.g., The Sopranos: Calling All Cars (HBO TELEVISION DRAMA SERIES, SEASON FOUR 2002).

Since an inflatable rat is a symbol of a labor dispute, we decided that the Union's display of the rat near the entrance to the work site was the functional equivalent of picketing, i.e., it sent signals to those who approached the entrance that some type of labor dispute was occurring and that action on their part was desired. The Board has long used the doctrine of "signal picketing" to describe union conduct that did not involve traditional picketing but could be characterized as "picketing" because it evokes the same response as a traditional picket line. The Board has found "signal picketing" where union business agents were stationed near a jobsite site entrance, or where unaccompanied union placards were placed near an entrance. See, e.g., United Mine Workers of America, District 2 (Jeddo Coal Co.), 334 NLRB No. 86 (2001); Sheet Metal Workers, Local 19 (Delcard Associates, Inc.), 316 NLRB 426, 437-438 (1995) enfd. denied on other grounds, 154 F.3d 137 (3rd Cir. 1998). The inflatable rat in this case served the same function. Neutral employees would assume that a picket line existed because of the huge inflatable rat surrounded by Union members and would refuse to enter the site or make deliveries.

REMEDIES

Application of Joint Employer's Bargaining Agreement

In this case, we decided that the Respondent's compliance with the Board's Order in Gourmet Award Foods, Northeast, 336 NLRB No. 77 (2001), did not require the Respondent to apply the economic provisions of its bargaining agreement to joint employees supplied to Respondent by supplier employers.

In its decision, the Board held that Respondent must apply its bargaining agreement to the supplied employees "only as to the working conditions the Respondent controls." Slip op. at 4. The Board noted that the Judge had only found that "the supplier employers generally controlled other areas [than Respondent], such as pay" and did not decide whether either employer "controlled any specific aspects of an area generally controlled by the other employer." Slip op. at 3-4. A Board majority therefore left to a later compliance determination "issues regarding the Respondent's control over specific working conditions governed by particular contract provisions...."

Member Liebman made clear that she reluctantly joined Member Truesdale to form the majority opinion in this case, applying the contract to conditions which Respondent controlled, because the dissenting opinion argued that the contract should not apply at all. Member Liebman's view, which did not prevail, was that the Respondent should apply its entire bargaining agreement to the supplied employees because the arrangement between Respondent and the suppliers, giving Respondent control over some employment conditions and the suppliers control over others, was voluntary.

We conducted a subsequent investigation into Respondent's control over supplied employee working conditions. We determined that, when the Respondent needed additional workers, it simply called supplier agencies, specified the number of employees it needed, and was quoted an hourly rate. Respondent did not discuss different economic "packages" and did not discuss supplier agency bargaining agreements rates. In sum, Respondent had no knowledge of, or input into, the economic employment terms of supplied employees. We therefore decided that Respondent was not required to apply the wage and benefit terms in its bargaining agreement to the supplied employees.

We recognized that Respondent could have asserted control over the supplied employees. For example, Respondent could have chosen to pay supplied employees the difference between what they were paid and what the Respondent's contract paid. However, the possibility of such a voluntary financial arrangement would not have been the form of specific control that the Board majority required for application of Respondent's bargaining agreement. Instead, this type of "voluntary" or potential employer control is precisely what Member Liebman viewed as sufficient for contract application. Her view was not the majority decision; she recognized her disagreement with Member Truesdale on this point. We therefore decided that even such a voluntary financial arrangement would not require application of the economic terms of the bargaining agreement.

Special Remedies for Undocumented Workers

We decided to seek special notice and access remedies because the Employer's conduct had destroyed the Union's ability to participate in a fair election involving employees who were not documented to work in the United States.

Union A began organizing the Employer's 10 employees. To prevent Union A from succeeding, the Employer entered into a collective-bargaining agreement with Union B, even though Union B did not have majority support. The Employer announced that the employees were now all members of Union B and would be fired if they joined another union. The Employer also discriminatorily discharged two Union A supporters. Although both of these employees were undocumented workers, the Employer had not asked them to provide work authorization documentation when it initially had hired them. After the Employer terminated these employees, no other employees would speak to Union A.

We first decided to seek only conditional reinstatement for the discharged employees under A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408 (1995), enfd. 134 F.3d 50 (2d Cir. 1997). In A.P.R.A., the Board ordered an employer, who had knowingly hired undocumented workers, to offer them reinstatement conditioned on their satisfaction of immigration law verification procedure. The Supreme Court's decision in Hoffman Plastic Compounds, 122 S.Ct. 1275 (2002) does not prohibit this remedy of conditional reinstatement remedy. In Hoffman, an employer hired a worker without knowledge of his immigration status. The Court held that the worker was not entitled to back pay or reinstatement. Hoffman did not involve an employer who knowingly hired undocumented workers. The Court therefore did not even address conditional reinstatement for that kind of discriminatee.

We also decided to seek a notice reading remedy in this case. See General Counsel Memorandum 02-06, "Procedures and Remedies for Discriminatees Who May be Undocumented Aliens after Hoffman Plastic Compounds, Inc.," at 5 (July 19, 2002). Notice reading for undocumented workers was appropriate because the Board's ability to reassure employees that their Section 7 rights will be protected is greatly limited where the Board can not obtain reinstatement. Further, where an employer's workforce includes employees with limited English-language abilities and little familiarity with American labor law, a notice reading remedy helps ensure that these employees learn about their Section 7 rights. We also decided to seek an order requiring the Employer to provide the Union, upon request, with names and addresses of unit employees. This remedy was designed to address the Section 8(a)(2) violations which arose when the Employer denied Union A access to organize its employees. Finally, we decided to not seek additional special access remedies even though the Employer had committed severe and pervasive unfair labor practices. The Employer was not a recidivist, and the unfair labor practices, although severe, were relatively few in number.

Section 10(j) Authorizations

During the five month period from September 1, 2002 through January 31, 2003, the Board authorized a total of 9 Section 10(j) injunction proceedings.1 Most of the cases fell within factual patterns set forth in General Counsel Memoranda 01-03, 98-10, 89-4, 84-7 and 79-77.2

One case was somewhat unusual and therefore warrants special discussion.3

The Region had issued a Section 8(a)(1) and (3) complaint against the Employer, which was a manufacturer and a defense contractor. The complaint alleged that two closely-related businesses constituted a "single employer" under the Act. The Union was engaged in an initial organizing campaign among the Employer's 420 production, maintenance, shipping, and receiving employees. The Union had filed a representation petition with the Board. The Employer responded by allegedly engaging in serious unfair labor practices, including threats of discharge and plant closure, the discriminatory discharge of three Union supporters, and the imposition of more onerous working conditions upon employees. To protest the Employer's asserted violations, the Union commenced an alleged unfair labor practice strike that was supported by a substantial part of the unit employees. The Employer hired permanent replacement workers for the strikers' jobs. The Union informed the Region that it was prepared to proceed to a Board election if the Board could obtain appropriate injunctive relief.

We concluded that 10(j) relief was warranted in this case both to protect the Union's status in this organizational campaign and to restore "laboratory conditions" in this unit to permit the holding of a fair election. We directed the Region to seek, inter alia, a broad cease and desist order and an order requiring the Employer to offer interim reinstatement to the three discharged employees and to the strikers upon their unconditional offer to return to work, displacing if necessary the permanent replacements.

The district court granted the requested injunctive relief in substantial part. The court concluded that a "[f]]ailure to impose an injunction will likely lead to dissipation of union support over the time needed for the Board to complete its administrative process." The court also rejected the Employer's jurisdictional defense that the Board's temporary delegation of Section 10(j) authority to the General Counsel was improper.

The 9 authorized cases fell within the following categories as described in General Counsel Memoranda 01-03, 98-10, 89-4, 84-7 and 79-77:

Category Number of Cases In Category Results
1. Interference with organizational campaign (no majority) 1 Won case.
2. Interference with organizational campaign (majority) 1 Case is pending.
3. Subcontracting or other change to avoid bargaining obligation 0 - - -
4. Withdrawal of recognition from incumbent 1 Case was withdrawn based upon changed circumstances.
5. Undermining of bargaining representative 2 One case settled after petition; one case is pending.
6. Minority union recognition 1 Case is pending.
7. Successor refusal to recognize and bargain 1 Won case.
8. Conduct during bargaining negotiations 1 Case was withdrawn based upon changed circumstances.
9. Mass picketing and violence 0 - - -
10. Notice requirements for strikes and picketing (8(d) and 8(g)) 0 - - -
11. Refusal to permit protected activity on property 0 - - -
12. Union coercion to achieve unlawful object 0 - - -
13. Interference with access to Board processes 0 - - -
14. Segregating assets 1 Lost case.
15. Miscellaneous 0 - - -

1 Of these cases, the General Counsel directly authorized four (4) Section 10(j) proceedings under the December 21, 2001 temporary delegation from the Board of "full authority on all court litigation matters." See 66 Fed. Reg. 65,998-02, 2001 WL 1635725 (2001).

2 See also NLRB Section 10(j) Manual, Appendix A, "Training Monograph No. 7."

3 This case was directly authorized by the General Counsel under the 2001 delegation. See n. 1, supra.

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