* Honorable Monti L. Belot, District Judge, United S tates District Court for

the District of Kansas, sitting by designation.

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

F. ROZIER SHARP, Regional Director for Region Seventeen of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee,

v. WEBCO INDUSTRIES, INC., Respondent-Appellant. No. 00-5005 (D.C. No. 99-CV-893-H) (N. District of Oklahoma)

ORDER Filed September 25, 2001

Before SEYMOUR , Circuit Judge, McWILLIAMS , Senior Circuit Judge, and BELOT , District Judge. *

Appellee’s motion to publish our order and judgmentdated July 18, 2001, without objection, is granted. A copy of the publi shed opinion is attached to this order.
ENTERED FOR THE COURT PATRICK FISHER, Clerk of Court By: Deputy Clerk* Honorable Monti L. Belot, District Judge, United S tates District Court for (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 18 2001 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

F. ROZIER SHARP, Regional Director for Region Seventeen of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee,

v. WEBCO INDUSTRIES, INC., Respondent-Appellant. No. 00-5005

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 99-CV-893-H)

David E. Strecker (James E. Erwin with him on the b riefs), of Strecker & Associates, P.C., Tulsa, Oklahoma, for Respondent-Appellant. Laura T. Vazquez, Attorney (Leonard R. Page, Genera l Counsel; Mary Joyce Carlson, Deputy General Counsel; Barry J. Kearney, Associate General Counsel; Ellen A. Farrell, Assistant General Counsel; JudithI. Katz, Deputy Assistant General Counsel, with her on the brief), of the Nat ional Labor Relations Board, Washington, D.C., for Petitioner-Appellee.

Before SEYMOUR , Circuit Judge, McWILLIAMS , Senior Circuit Judge, and BELOT , District Judge. ** (...continued)

the District of Kansas, sitting by designation. -2- McWILLIAMS , Senior Circuit Judge

.

Webco Industries Inc. is a steel tubing manufacture r and distributor headquartered in Sand Springs, Oklahoma. On Octobe r 7, 1998, Webco laid off fifty three employees in an economically-motivated reduction in force. The following day the United Steelworkers of America (“ Union”) filed an unfair labor practice charge with the National Labor Relations B oard (“Board”) alleging that Webco discriminatorily selected Union supporters fo r layoff in violation of Section 8(a)(3) of the National Labor Relations Act(“Act”). In the days immediately following the layoffs, some, but not al l, of the laid off employees, signed severance agreements with Webco. Charles H. Casey and Eric R. Martin, who had been laid off signed a severance agreement. By those agreements the employees relinquished any claims against Webco, in cluding “any rights or claims . . . [they] may have . . . under the Nation al Labor Relations Act, which prohibits unfair labor practices which interfere wi th employees’ rights under said Act,” in exchange for severance benefits granted th em by Webco. (The severance agreements also provided that the employee would no t seek re-employment with-3-

Webco). Those benefits included “career transition ” assistance and severance pay calculated according to the employees’ length o f service with the company. Casey’s severance pay was $4085.64 and Martin’s was $569.40. On March 8, 1999, after investigating the Union’s S ection 8(a)(3) charge, the Regional Director issued a complaint which, as eventually amended, alleged that Webco had discriminatorily selected seventeen employees for layoff. Casey and Martin, and several others who had signed sever ance agreements, were among the discriminatees named in the complaint. I n its answer to the complaint Webco alleged that the severance agreements barred the Section 8(a)(3) claims of all discriminatees who had signed the severance agr eements. Between May 4 and May 19 1999, Webco filed petition s in the District Court of Creek County, Oklahoma against the employe es named in the Section 8(a)(3) complaint who had signed severance agreemen ts, including Casey and Martin. Webco’s petitions generally alleged that the employees had waived all claims against it by their signing of the severance agreements and that their participation as discriminatees in the Section 8(a) (3) unfair labor practice proceeding constituted a breach of contract. Short ly after Webco filed its breach of contract actions in state court, the Union fileda new unfair labor practice charge alleging that Webco, in filing its breach of contract actions, violated the Act because such were filed in retaliation for the employees’ participation in the-4-

layoff case. While the Regional Director investigated this new c harge, the Section 8(a)(3) case was proceeding. The Administrative he aring in that case commenced on May 11, 1999. In that hearing, Webco continued to defend on the basis that the severance agreements barred some of the discrim inatees’ 8(a)(3) claims, including Casey’s and Martin’s claims. Eventually Webco reached settlements with many of the discriminatees who had signed seve rance agreements. By these settlements the employees withdrew from the Section 8(a)(3) proceeding and in return Webco dismissed its breach of contract actio n against them. Of the discriminatees who signed the severance agreements, only Casey and Martin declined to settle. In other words, they remained in the Section 8(a)(3) proceedings and Webco persisted in its breach of co ntract case against the two. On August 25, 1999, with the Section 8(a)(3) case p ending, the Regional Director completed his investigation of the charge based on Webco’s prosecution of breach of contract actions in state court and he issued another unfair labor practice complaint against Webco. That complaint a lleged that Webco’s breach of contract actions against Casey and Martin violat ed Section 8(a)(1) and (4) of the Act because they challenged their participation in the Section 8(a)(3) proceeding and that such is preempted by the Board’ s jurisdiction over the issues1 Jumping ahead, an Administrative Law Judge held a h earing on October 22,

1999 in Tulsa, Oklahoma on the complaint that Webco had violated Sections 8(a)(1) and (4) of the Act by filing lawsuits against Casey andMartin in state court because they had participated in the Section 8(a)(3) proceedings . On March 20, 2000, the Judge issued her decision on that matter and held that We bco in prosecuting its state actions against Casey and Martin had violated Sections 8(a) (1) and (4) and entered a remedial order against Webco. -5- involving layoffs under consideration in the 8(a)(3 ) case. 1 About one month after the 8(a)(1) and (4) complaintissued, the Administrative Law Judge, on September 17, 1999, is sued his decision in the 8(a)(3) case. The judge found that Webco had discr iminatorily selected Union supporters for layoffs, including Casey and Martin. In so doing, the judge rejected Webco’s defense that the severance agreeme nts barred Casey and Martin from participating in any manner in the 8(a)(3) pro ceeding and held that the severance agreements did not effectively waive Case y’s and Martin’s right to resort to the Board regarding the layoffs. Webco f iled exceptions to the judge’s decision and the matter is now pending before the B oard. In September, 1999, shortly after the Administrativ e Law Judge’s decision, which, as stated, was issued on September 17, 1999 , Webco amended its breach of contract action in the state court and added two new causes of action, one for unjust enrichment and one for money had and receive d. By these new claims, Webco seeks return of the severance benefits given Casey and Martin. The newly added claims, based on unjust enrichment and on mon ey had and received,-6-

incorporated therein by reference the breach of con tract allegations contained in counts one and two of the amended petition. On October 20, 1999, F. Rozier Sharp, Regional Dire ctor, filed, under Section 10(j) of the Act, a petition for an injunc tion against Webco in the United States District Court for the Northern District of Oklahoma alleging that Webco had engaged in unfair labor practices within the me aning of Section 8(a)(1) and (4) of the Act. Specifically, Sharp alleges that W ebco, in instituting lawsuits against Casey and Martin in the state court of Oklahoma on May 5, 1999 and May 19, 1999, engaged in unfair labor practice unde r Section 8(a)(1) and (4) of the Act because its lawsuits against Casey and Mart in were “preempted under Loehman’s Plaza , 305 NLRB 663(1991), because the Board has exclusi ve jurisdiction over the issues raised by the lawsuits .” In this connection, Sharp went on to allege that temporary injunctive relief was “‘just and proper’ to preserve the Board’s exclusive jurisdiction and to prevent the possibility of inconsistent judgments between the Board and the st ate forums” and that the Board has “exclusive jurisdiction to determine if R espondent’s [Webco’s] waiver defense is valid under federal labor law.” The following day, on October 21, 1999, Webco filedan answer and counter-claim to Sharp’s petition. In its counterc laim, Webco alleged that both Casey and Martin had “committed substantial materia l breaches of the terms of-7-

their Agreements with Webco.” On December 8, 1999, the day before the district co urt held a hearing on Sharp’s petition for a temporary injunction, Webco moved in state court to dismiss its breach of contract claims against Caseyand Martin, but continue its restitution claims against them. On December 14, 1 999, the district court, after considering the parties’ briefs, the Board’s admini strative record, various exhibits and testimony from several witnesses, granted the R egional Director’s request for a temporary injunction and denied Webco’s countercl aim. Webco appeals the district court’s order. Sharp’s petition for injunctive relief was filed pu rsuant to 29 U.S.C. §160(j), referred to by the parties as Section 10(j ). That sections provides as follows: The Board shall have power , upon issuance of a

complaint as provided in subsection (b) charging th at any person has engaged in or is engaging in an unfa ir labor practice, to petition any United States Distr ict Court , within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order . Upon the filing of any such petition the courtshall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the B oard such temporary relief or restraining order as it de ems just and proper. (emphasis added). As indicated, Webco filed an answer to Sharp’s peti tion for temporary-8-

injunctive relief, wherein it admitted many of the allegations in the petition but also denied many others. Webco then asked the court to dismiss Sharp’s petition in its entirety. Webco at the same time filed a co unterclaim asking the district court to enter an order directing the Board to show cause why it should not stay its own proceedings in the unfair labor practice pr oceeding involving the claim that Webco, in filing state actions against Casey and Martin, was guilty of unfair labor practices, until Webco’s state court actions were finally resolved. As a first alternative Webco asked that the district court ord er that the Board’s complaint regarding that matter as well as the notice of hear ing issued by the Board in connection therewith be vacated. As a further alte rnative, Webco asked the district court to order the Board to “leave open an d not conclude” the earlier unfair labor practices proceeding involving the charge that Webco had discriminatorily laid off Casey and Martin. In its order granting Sharp’s petition for injuncti ve relief, the district court held that in prosecuting contract claims against Ca sey and Martin in a state court in Oklahoma because their names were included in a charge filed by the Union with the Board there was “reasonable cause to belie ve that Webco had violated the NLRA,” and that injunctive relief was, under th e circumstances, “just and proper,” citing Angle v. Sacks, 382 F.2d 655 (10th Cir. 1967). In connection therewith, the district court explained its reasoni ng in so holding in considerable-9-

detail. The district court distinguished Bill Johnson’s Restaurant Inc. v. NLRB , 461 U.S. 731, 738 n. 5 (1983), relied on by Webco, from the instant case. The district court recognized what it described as “wel l settled” law that the Board has the authority to enjoin state actions where its federal power preempts, or arguably preempts, the field. See NLRB v. Nash-Finch Co. , 404 U.S. 138 (1971). The district court also noted that the que stion whether the severance agreements signed by Casey and Martin constituted avalid waiver of their statutory rights was still pending before the Board . In so noting, the district court was aware that by that time Webco had dismissed its breach of contract claims against Casey and Martin, and then rejected counsel ’s suggestion that “its remaining state court causes of action [i.e. for un just enrichment and money had a received] escape preemption.” We are in general accord with the district court’s analysis of this matter. As indicated, this proceeding was started by Sharp’ s filing with the United States District Court for the Northern District of Oklahom a a petition for a temporary injunction against Webco enjoining it from pursuing , for the time being, various claims against Casey and Martin wherein Webco sough t return of moneys given by it to Casey and Martin in return for their promi se “not to sue” Webco for their layoffs. We emphasize that we are here concerned w ith only a temporary injunction, not a permanent injunction. Under Angle v. Sacks, 382 F.2d 6552We note that Bill Johnson’s was concerned with a Board’s cease-anddesist order, whereas here we are concerned with a temporary injunction issued by a district court in a Section 10(j) proceeding. -10- (10th Cir. 1967), the Board had to show “reasonable cause” to believe that Webco had violated the Act and that temporary injun ctive relief under the circumstances was “just and proper.” We agree thatthe Board met its burden of proof in these regards. In issuing the temporary in junction, the district court did not abuse its discretion. Id. at 658. Webco’s basic position in this court is that Bill Johnson’s precludes the issuance of a temporary injunction in the present c ase. The district court rejected that argument as do we. In Bill Johnson’s at 737 n. 5 , the Supreme Court recognized that it was not “dealing with a suit that is claimed to be beyond the jurisdiction of the state courts because of federal -law pre-emption . . . .” 2Here we are dealing with such a claim. Certainly it is reasonably arguable that the state court’s jurisdiction over Webco’s state claim s against Casey and Martin have been preempted by the Act. In that regard, th e district court observed that Webco had at one time agreed to stay its state brea ch of contract claim against Casey and Martin pending resolution of the Board’s proceedings and that it was only after they abandoned those claims and asserted money had and received and unjust enrichment claims that it decided that it sh ould be allowed to pursue those claims without in any way deferring to the Board. The severance agreements-11-

signed by Casey and Martin are intertwined with andhave a bearing on the ultimate question of whether Webco is entitled to areturn of the $4085.64 it paid Casey and the $569.40 it paid Martin in return for their promise not to sue Webco or seek reinstatement. Having concluded that there was “reasonable cause” to believe that Webco had committed an unfair labor practice, that it was both “just and proper” for the district court to issue a temporary injunction and that its issuance thereof does not offend Bill Johnson’s , we need not consider the alternative grounds reli ed on by the district court for its issuance of the tempo rary injunction. Judgment affirmed.