IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-51006

CORNELE A. OVERSTREET, Regional Director of Region 28 of the National

Labor Relations Board, for and on behalf of the National Labor Relations

Board,

Plaintiff-Appellee

v.

EL PASO DISPOSAL, L.P.,

Defendant-Appellant

Appeal from the United States District Court for

the Western District of Texas

Before SMITH, WIENER, and ELROD, Circuit Judges.

WIENER, Circuit Judge:

Following union certification, thirteen months of bargaining, and a strike,

Plaintiff-Appellee the National Labor Relations Board (“the NLRB” or “the

Board”) filed charges of unfair practices against Defendant-Appellant El Paso

Disposal (“EPD”). The NLRB also filed a petition in the district court for

temporary injunctive relief, seeking to force EPD to (1) cease and desist from

alleged unfair labor practices, (2) recognize and bargain in good faith with the

certified union, (3) rescind unlawful unilateral changes in working conditions,

and (4) offer to reinstate the former strikers. The NLRB filed for this injunction

United States Court of Appeals

Fifth Circuit

F I L E D

November 4, 2010

Lyle W. Cayce

Clerk

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pursuant to its authority under § 10(j) of the Labor Relations Management Act

(“the Act”). The district court granted the injunction. EPD appeals the

injunction, contesting (1) the court’s determination that it engaged in bad-faith

bargaining in relation to Dues Check-Off, and (2) the court’s order to reinstate

the striking workers to the same or equivalent employment. We affirm.

I. Facts & Proceedings

A. Facts

EPD is a garbage collection and disposal company incorporated in Texas

with its principal place of business in El Paso. The International Union of

Operating Engineers, Local 351, AFL-CIO (the “Union”) was certified as the

exclusive bargaining representative for EPD’s Maintenance Unit employees on

Sept 28, 2006, and for EPD’s Drivers Unit employees on October 12, 2006.

Between these dates— on October 2, 2006— the Union sent an official notice to

EPD demanding that it bargain with the Maintenance Unit employees.

The first negotiating session occurred late in January 2007. Between that

time and late November 2007, the Union and EPD held fourteen bargaining

sessions, each of which lasted for about five hours. It was difficult to schedule

these sessions because the attorney for EPD only had authority to speak on

behalf of EPD and not to enter into agreements without a management official

present.

The parties first attempted to address the non-economic issues. As of

August 9, 2007, four non-economic issues remained unresolved:

(1) Grievance/Arbitration, (2) No Strike/No Lockout, (3) Management Rights,

and (4) Dues Check-Off. The Union had proposed the Dues Check-Off clause in

the first bargaining session held in January 2007. In May 2007, the Union

offered to accept the Management Rights clause if EPD would accept the Union’s

Dues Check-Off clause. This offer was reiterated to EPD by the Union on May

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31, 2007. EPD rejected this offer without explanation and never submitted a

written counterproposal to the Union on this issue.

In September 2007, the Union informed EPD that its members had voted

unanimously to strike. The parties decided to change the focus of negotiations

from the remaining non-economic issues to the economic proposals. Early in

October 2007, after continuing to discuss the Union’s economic proposals, the

parties agreed that Gene Dupra, a management official for EPD, would meet

with the employees and ask prepared and approved questions about the

employees’ concerns, EPD’s performance, and the Union. Duprea told some

employees that he would discuss the employees’ concerns with his supervisors.

During the negotiations, EPD made unilateral work policy changes. These

included (1) requiring an employee to supply a doctor’s note to use sick leave

after a holiday, (2) transferring an employee from one driver position to another,

with a change in pay rate from hourly to incentive, and (3) suspending its

longevity bonus (a watch after ten years of service) for one employee.

At a meeting about a month later, EPD stated its belief that sufficient

progress had been made for it to present a “last, best, and final offer” at the next

meeting. The Union disagreed because both Dues Check-Off and

Grievance/Arbitration remained to be settled. EPD nevertheless presented its

last, best, and final offer to the Union in November 2007. That offer consisted

of thirty-two articles, of which only twenty-three had been mutually agreed on

previously. The non-agreed articles included Management Rights, Holidays,

Sick Leave, Uniform, Fringe Benefits, Grievance/Arbitration, No Strike/No

Lockout, Wage Increase, and Longevity Bonuses. The Management Rights

provision would grant EPD discretion in setting workplace rules, as well as

disciplining, discharging, subcontracting, and laying-off employees. A federal

mediator delivered the Union’s counter offer on several of the articles to EPD,

most of which EPD refused to accommodate.

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After that meeting, but on the same day, the Union held a general meeting

with the employees of the Maintenance and Drivers Units. The Union

negotiator told the employees that EPD “wasn’t willing to budge” on the Union’s

proposals. He then explained the difference between an economic strike and an

unfair labor practices strike, and he stated that the Union would be filing an

unfair labor practices charge against EPD. The Union members then voted

unanimously to begin a strike on November 21, 2007.

That meeting was held on November 13, 2007. At 4 a.m. the next

morning, EPD held a mandatory meeting for the drivers; no Union

representative was present. EPD summarized its final offer for the Maintenance

Unit and told the drivers that the proposed contract was for both units. EPD

then informed the drivers that if they joined the maintenance strike, they would

be permanently replaced. Prompted by a question from an employee, EPD

explained how to get rid of the Union. EPD then called a meeting with the

Maintenance Unit for November 20, 2007 to inform those employees that any of

them who struck would be permanently replaced.

The strike began at 12:01 a.m. on November 21, 2007. A total of fifty-five

workers from one or the other units joined the picket line in front of EPD’s

facility. The next day, EPD called the El Paso Police Department to complain

that the picketers were obstructing motorists’ vision and to request that the

police send officers to the picketers’ location. EPD began hiring replacement

employees that day; by the end of the week EPD had replaced all striking

workers.

Early in December 2007, the Union made an unconditional offer to return

to work. EPD rejected the offer the next day and informed the Union that it

considered the strike to be an economic one, that all strikers were permanently

replaced, and that no vacancies existed. EPD did create a preferential hiring list

of striking workers, onto which all but three of the striking workers signed. By

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the middle of May 2008, however, only two striking workers had been offered reemployment; five replacement mechanics had left EPD. Also, two welding

positions came open in May, but these were not offered to any of the striking

workers. And, even though EPD discharged fifteen of its replacement drivers,

it did not offer any of these positions to striking workers. The few strikers hired

from the preferential hire list were treated as new hires: They were required to

fill out paperwork as if they were new hires, were offered lower wages, and were

denied longevity bonuses, such as a certificate of appreciation and a check for

$2,000 for fifteen years of service.

In mid-December 2007, fifty drivers signed a petition declaring that they

no longer wished to be represented by the Union. In December 2008, EPD

received two more disavowal petitions, both from the Maintenance Unit, with

twenty-seven signatures on each. Prior to that month, one driver filed a

decertification petition with the NLRB seeking to decertify the Union as the

bargaining representative of the Drivers’ Unit.

In March 2009, EPD granted its first wage increase in three years to the

employees in the bargaining Units. Incentive-based and non-striking drivers

received a 6.2 percent pay increase, and hourly replacement drivers received a

3.2 percent increase. EPD neither notified the Union prior to granting these

increases nor provided the Union an opportunity to bargain over these increases.

In April 2009, an Administrative Law Judge (ALJ) issued a decision on six

charges that had been filed by the Union with the NLRB between November

2007 and March 2008. The ALJ generally agreed with the Union that EPD had

violated the Act in many ways, including bad faith bargaining and dilatory

negotiating practices. The ALJ ruled that the strike was an unfair labor

practices strike and that the December 2007 disavowal petitions were tainted by

EPD’s unfair labor practices. A different ALJ heard testimony on three

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subsequent charges filed with the NLRB between November 2009 and March

2009.

B. Proceedings

Plaintiff-Appellee, Cornele Overstreet,the Regional Director of the NLRB,

filed an administrative complaint against EPD late in January 2008. In it, he

alleged that EPD had engaged in unfair labor practices under the Act in

violation of § 8(a)(1) and (5). At the end of April 2008, Overstreet filed another

1

administrative complaint against EPD, this one alleging unfair labor practices,

including practices relating to the strike and the failure to reinstate strikers

after the Union terminated the strike in December 2007. After EPD responded

to these two complaints, the ALJ issued a recommended decision and order in

April 2009, to which both parties filed exceptions. These matters are still

pending before the NLRB. Overstreet filed two other administrative complaints

that year, one in February and the other in May. Hearings on these complaints

were held in August 2009 and are still pending before the NLRB.

In July 2009, following issuance of an administrative complaint and

pursuant to § 10(j) of the Act, Overstreet filed the instant petition for injunctive

relief in the district court. EPD challenged the petition and moved to dismiss for

lack of subject matter jurisdiction. After conducting a hearing, the district court

denied EPD’s motion to dismiss and granted Overstreet’s temporary injunction,

which required EPD to offer the striking workers immediate reinstatement and

ordered EPD to recognize the Union and resume bargaining. EPD timely filed

a notice of appeal. In December 2009, this court denied a motion to stay the

injunction.

 29 U.S.C. § 158(a)(1), (5) (2010). 1

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II. Analysis

A. Standard of Review

We review the district court’s determinations of subject matter jurisdiction

de novo. When we review injunctive relief under § 10(j), we conduct a

2

sequential two-party inquiry: (1) whether the Board, through its Regional

Director, has “reasonable cause” to believe that unfair labor practices have

occurred, and (2) if they did, whether injunctive relief is “just and proper.” A

3

district court need only decide that the NLRB’s theories of law and fact are

neither insubstantial nor frivolous to rule that the Board had reasonable cause.

4

We review the district court’s factual determinations for clear error and its legal

conclusions de novo. We review whether injunctive relief is just and proper

5

under an “abuse of discretion standard.”

6

EPD urges that we should employ the traditional four-part equitable test

for injunctive relief, or at least require a showing of irreparable harm, when we

evaluate the propriety of injunctive relief under § 10(j). We have said, however,

7

that “[al]though traditional rules of equity may not control the proper scope of

§ 10(j) relief, some measure of equitable principles come [sic] into play.” This

8

Zolicoffer v. United States Dep’t of Justice, 315 F.3d 538, 540 (5th Cir. 2003); United 2

States v. Tex. Tech. Univ., 171 F.3d 279, 288 (5th Cir. 1999).

Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185, 1188-89 (5th Cir. 1975). 3

Id. at 1189. 4

Guy Carpenter & Co. v. Provenzale, 334 F.3d 459, 463 (5th Cir. 2003).

5

Pilot Freight Carriers, 515 F.2d at 1192. 6

EPD notes that other circuits, such as the First, Fourth, Seventh and Ninth Circuits,

7

employ a four-part test; the Sixth Circuit, on the other hand, employs the same ‘reasonable

cause/just and proper’ standard as we do.

Pilot Freight Carriers, 515 F.2d at 1192-93.

8

7

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is because “[s]ection 10(j) is itself an extraordinary remedy” that must be used

9

sparingly and then only when the NLRB, in its discretion, is concerned that

either a employer or an union has committed such unfair labor practices that

any final order of the NLRB would be meaningless and the remedial purposes

of the Act will be frustrated without an injunction to preserve the status quo.

A requirement, such as proposed by EPD, to make the NLRB show

“irreparable harm” and “likelihood of success” for § 10(j) relief would raise the

factual threshold that the NLRB must reach. Nothing in Pilot Freight

10

Carriers, or in our case law, supports replacing the test we currently use with

a hybrid that incorporates the traditional four-part test for equitable relief.

Although the principles of equity inform an evaluation for § 10(j) relief, the two

part Pilot Freight Carriers test remains the clear operative test for evaluating

such relief.

11

Id. at 1192. 9

The test outlined in Pilot Freight Carriers almost undoubtedly does not require such

10

a heightened factual threshold. The Eleventh Circuit, employing Pilot Freight Carriers as its

precedential authority, held on the issue of the factual threshold necessary for § 10(j) relief:

We now make it clear that in order to prove reasonable cause, the Board must

present enough evidence in support of its coherent legal theory to permit a

rational factfinder, considering the evidence in the light most favorable to the

Board, to rule in favor of the Board.

Arlook ex rel. NLRB v. S. Lichtenberg & Co., 952 F.2d 367, 371 (11th Cir. 1992). This

threshold is significantly lower than a requirement to show ‘irreparable harm’ and ‘likelihood

of success’.

Indeed, the most we have said on the matter is “though traditional rules of equity 11

may not control the proper scope of § 10(j) relief, some measure of equitable principles come

[sic] into play.” Pilot Freight Carriers, 515 F.2d at 1192-93. In light of our silence on the issue

after Pilot Freight Carriers as well as the Eleventh Circuit’s holding, based on the same case,

that the Board must show only a minimal burden of proof, Arlook, 952 F.2d at 371, we are

satisfied that the Pilot Freight Carriers test should not be modified in this case, even if we

were free to do so under our rule of orderliness.

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B. Subject Matter Jurisdiction

EPD contends that the district court lacked subject matter jurisdiction

under § 10(j) to issue the injunction because the petition was neither considered

nor authorized by the NLRB. Alternatively, EPD claims that the district court

lacked subject matter jurisdiction because the NLRB has not had a quorum since

January 1, 2008, as a result of which the General Counsel had no authority to

petition the court for an injunction under § 10(j).

Section 10(j) of the Act states that the Board:

shall have power, upon issuance of a complaint as provided in

subsection (b) of this section charging that any person has engaged

in or is engaging in an unfair labor practice, to petition any United

States district court, within any district wherein the unfair labor

practice in question is alleged to have occurred or wherein such

person resides or transacts business, for appropriate temporary

relief or restraining order. Upon the filing of any such petition the

court shall cause notice thereof to be served upon such person, and

thereupon shall have jurisdiction to grant to the Board such

temporary relief or restraining order as it deems just and proper.

12

None questions that the NLRB has the power to request a § 10(j) injunction. In

this case, however, it was the General Counsel, not the NLRB, who requested

the injunction. The NLRB had delegated its § 10(j) authority to the General

Counsel, effective December 28, 2007. The Act creates the position of General

Counsel for the Board and states that the General Counsel “shall have final

authority, on behalf of the Board, in respect of the investigation of charges and

issuance of complaints under section 160 of this title, and in respect of the

prosecution of such complaints before the Board, and shall have such other

duties as the Board may prescribe or as may be provided by law.”

13

 29 U.S.C. § 160(j).

12

Id. § 153(d).

13

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A general limitation on the ability of the Board to delegate duties to the

General Counsel lies in the distinction between prosecutorial duties and

adjudicatory functions. EPD attempts to frame the Board’s petition power under

§ 10(j), and the decision whether to pursue § 10(j) relief, as an adjudicatory

function. Petition power under § 10(j) is prosecutorial in nature, however,

despite the fact that it includes the decision to seek an injunction. Other courts

have held that the NLRB may delegate only prosecutorial duties, and not

adjudicatory functions, to the General Counsel. Every court that has

14

considered the question whether the Board may delegate petition power to the

General Counsel under § 10(j) has held that it may do so. As the Fourth

15

Circuit noted in Muffley, seeking injunctive relief is prosecutorial because it is

the district court, and not the General Counsel, that ultimately grants or denies

relief after adjudicating the petition. The Board may delegate its petition

16

power under § 10(j) to the General Counsel, so the district court was within its

jurisdiction to consider Overstreet’s petition for an injunction in this case.

In its alternative contention, EPD insists that the district court lacks

subject matter jurisdiction because the Board did not have the required quorum

of members at all relevant times and was thus without the power to delegate.

Noting that § 153(b) sets a quorum at three members of the Board, and that the

Muffley ex rel. NLRB v. Spartan Mining Co., 570 F.3d 534, 540 (4th Cir. 2009); Flav- 14

O-Rich, Inc. v. NLRB, 531 F.2d 358, 363-64 (6th Cir. 1976); KFC Nat’l Mgmt. Corp. v. NLRB,

497 F.2d 298, 306-07 (2d Cir. 1974).

Muffley, 570 F.3d at 540 (“seeking § 10(j) relief from a district court adjudicates 15

nothing”); Kentov ex rel. NLRB v. Point Blank Body Armor, Inc., 258 F. Supp. 2d 1325, 1329

(S.D. Fla. 2002); Penello v. Int’l Union, UMWA, 88 F. Supp. 935, 937 (D.D.C. 1950); Evans v.

Int’l Typographical Union, 76 F. Supp. 881, 888-89 (S.D. Ind. 1948).

Muffley, 570 F.3d at 539-40. 16

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plain language of § 153(b) mandates that a quorum of the Board exists only

17

when there are at least three sitting members, EPD reasons that the General

Counsel’s delegated authority ceases during any periods that the Board’s

membership is fewer than three. To support this proposition, EPD cites the D.C.

Circuit’s recent decision in Laurel Baye Healthcare, Inc. v. NLRB, wherein that

18

court held that when the Board’s membership drops to two, it loses its quorum

and “[i]n the context of a board-like entity, a delegee’s authority therefore ceases

the moment the vacancies or disqualifications on the board reduce the board’s

membership below a quorum.”

19

The Supreme Court, however, recently decided New Process Steel, L.P. v.

NLRB, which implicated this issue. The Court held that when only two

20

members of a three-member delegee group remain, there is not a quorum and

the group loses the authority delegated to it by the Board. Despite similar

21

holdings, the Court explicitly declined to endorse the holding and reasoning of

Laurel Baye. Instead, on the question whether a delegee who is not a member

22

 The relevant language reads: 17

A vacancy in the Board shall not impair the right of the remaining members to

exercise all of the power of the Board, and three members of the Board shall, at

all times, constitute a quorum of the Board, except that two members shall

constitute a quorum of any group designated pursuant to the first sentence

hereof.

29 U.S.C. § 153(b).

 564 F.3d 469 (D.C. Cir. 2009), cert. denied, 130 S. Ct. 3498 (2010). 18

Id. at 473.

19

 130 S. Ct. 2635 (2010).

20

Id. at 2644. 21

Id. at 2643 n.4 (“[W]e do not adopt the District of Columbia Circuit’s equation of a

22

quorum requirement with a membership requirement that must be satisfied or else the power

of any entity to which the Board has delegated authority is suspended.”).

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of the Board may continue to function after the Board’s membership dips below

three, the Court stated:

Nor does failure to meet a quorum requirement necessarily

establish that an entity’s power is suspended so that it can be

exercised by no delegee. The requisite membership of an

organization, and the number of members who must participate for

it to take an action, are two separate (albeit related) characteristics.

. . .Our conclusion that the delegee group ceases to exist once there

are no longer three Board members to constitute the group does not

cast doubt on the prior delegations of authority to nongroup

members, such as the regional directors or the general counsel. The

later implicates a separate question that our decision does not

address.

23

In light of the Court’s pronouncement in New Process Steel, we feel no

compulsion to follow Laurel Baye.

When, on December 28, 2007, the NLRB delegated its § 10(j) power to the

General Counsel, the five-person board consisted of four members; there was but

one vacancy. Then, on December 31, 2007, several days after that delegation,

two of the Board’s four remaining members’ terms expired. For a significant

time, therefore, the NLRB comprised only two members (currently, the Board

is at its full strength of five members and has ratified the December 28, 2007

delegation of § 10(j) power to the General Counsel). Nevertheless, the operative

fact here is that, at the time of its delegation to the General Counsel, the Board

comprised the requisite number of members to constitute a quorum. The fact

that Board membership subsequently dipped below a quorum does not

retroactively invalidate the Board’s prior delegation. Therefore, the General

24

Id. 23

See Teamsters Local Union No. 532 v. NLRB, 590 F.3d 849 (10th Cir. 2009),

24

abrogated in part by New Process Steel, 130 S. Ct. 2635; Narricot Indus., L.P. v. NLRB, 587

F.3d 654, 658-60 (4th Cir. 2009), cert. dism’d, 79 U.S.L.W. 3015, and cert. dism’d, 79 U.S.L.W.

3016 (U.S. Sept. 16, 2010); New Process Steel, L.P. v. NLRB, 564 F.3d 840 (7th Cir. 2009), rev’d

on other grounds, 130 S. Ct. 2635 (2010); Snell Island SNF L.L.C. v. NLRB, 568 F.3d 410 (2d

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Counsel retained the § 10(j) power, despite fluctuations in the membership of the

Board.

C. The Grant of Injunctive Relief

The district court granted the injunction sought by the Board and ordered

that all fifty-five workers who were participating in the unfair labor practices

strike be reinstated. Although the EPD contests this grant of temporary

injunctive relief, we conclude that the district court did not abuse its discretion

in mandating that EPD reinstate those striking workers.

The district court employed the two-prong test from Pilot Freight Carriers.

As we noted above, this inquiry, and not a hybridization with a traditional fourpart equity inquiry, is the correct test to use when considering a § 10(j) petition.

When it did so, the district court determined that the strike was an unfair labor

practices strike, not an economic one. Strikers in an unfair labor practices strike

are entitled to immediate reinstatement to their former positions or to back pay

on an unconditional offer to work. The fact that EPD hired replacements does

25

not affect the entitlement of unfair labor practices strikers to return to work.

26

As the district court determined that this was an unfair labor practices strike,

the Union and the strikers had “reasonable cause” to believe that EPD violated

§ 8(a)(1) and (3) of the Act by not reinstating the strikers when they

unconditionally offered to be reinstated.

Cir. 2009), abrogated in part on other grounds by New Process Steel, 130 S. Ct 2635; Ne. Land

Servs., Ltd. v. NLRB, 560 F.3d 36 (1st Cir. 2009), abrogated in part on other grounds by New

Process Steel, 130 S. Ct. 2635.

Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278 (1956). 25

In re Nortech Waste & Operating Eng’rs Local Union No. 3, 336 N.L.R.B. 554, 565 26

(2001).

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EPD nevertheless insists that there is no “reasonable cause” supporting

the district court’s conclusion that the strike was an unfair labor practices strike.

EPD argues that (1) the record does not support the contention that EPD

engaged in bad faith bargaining, and (2) even if there is some evidence of bad

faith, there is no causal linkage between such evidence and the strike.

To the contrary, the record contains evidence that EPD did engage in bad

faith bargaining. For example, it is an unfair labor practice for an employer “to

refuse to bargain collectively with the representatives of his employees.” Both

27

parties are required to “meet at reasonable times and confer in good faith with

respect to wages, hours, and other terms and conditions of employment, or the

negotiation of an agreement, or any question arising thereunder.” We will

28

sustain a determination of bad faith as long as we “find[] support in the record

as a whole . . . even though the court would justifiably have made a difference

choice had the matter been before it de novo.”

29

The record contains a significant amount of evidence which suggests that

EPD failed to meet its responsibilities as a negotiating partner. It did not meet

at reasonable times, delayed the initial bargaining session for four months, and

refused to negotiate for more than five hours a day. EPD’s representatives often

left those meetings early to catch flights out of town and attended only fourteen

bargaining sessions over a thirteen-and-one-half month period (for a total

bargaining time of sixty hours). In addition, EPD refused to schedule sessions

with the Union unless all three negotiators could attend, and EPD failed to

negotiate in good faith by refusing to negotiate the Dues Check-Off provision,

 29 U.S.C. § 158(a)(5). 27

Id. § 158(d).

28

Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1187 (5th Cir. 1982) (citations and internal 29

quotation marks omitted).

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which is a mandatory subject of bargaining under the Act. Further, EPD

30

insisted on offering a last, best, and final offer after only two meetings to

negotiate economic issues and no discussion relating to longevity bonuses.

Lastly, EPD refused to consider the bulk of the Union’s counter to EPD’s final

offer. EPD’s conduct away from the bargaining table was no better. As further

31

evidence of its bad faith, EPD instituted changes to working conditions

unilaterally and conducted unilateral interviews with employees. When we

consider all the totality of the evidence in the light most favorable to the Board,

we perceive more than “reasonable cause” for the Board to conclude that EPD

engaged in bad faith bargaining.

Contrary to EPD’s assertions, the record reflects evidence of a causal link

between EPD’s bad faith bargaining and the strike. If the Board shows that “an

unfair labor practice is a ‘contributing cause’ of a strike, then as a matter of law,

the strike must be considered as an unfair labor practice strike.” Morever, the

32

Board’s evidentiary burden is low because as long as “an unfair labor practice

had anything to do with causing the strike, it was [and will be considered by the

court] an unfair labor practice strike.” A causal connection, however, must be

33

more than employees’ mere awareness of the protected status afforded to unfair

labor practices strikers. Nevertheless, the burden is on the employer to show

34

See Sweeney & Co. v. NLRB, 437 F.2d 1127, 1134-35 (5th Cir. 1971) (quoting United 30

Steelworkers of America v. NLRB, 390 F.2d 846, 849 (D.C. Cir. 1967)).

Conduct away from the bargaining table is relevant to a determination of bad faith 31

bargaining. See In re Hardesty Co., 336 N.L.R.B. 258, 259 (2001), enforced, 308 F.3d 859 (8th

Cir. 2002).

NLRB v. Pope Maint. Corp., 573 F.2d 898, 906 (5th Cir. 1978) (quoting NLRB v.

32

Colonial Haven Nursing Home, Inc., 542 F.2d 691, 704 (7th Cir. 1976)).

NLRB v. Cast Optics Corp., 458 F.2d 398, 407 (3d Cir. 1972) (citation omitted).

33

See Id. 34

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that the strike would have occurred even if it had not committed unfair labor

practices.

35

In the instant case, there was employee testimony before the ALJ that

both economics and unfair labor practices caused the strike. At two separate

Union meetings, employees expressed frustration at the slow pace of

negotiations. In response, the Union representative explained during the

meeting at which the strike was declared that he believed the strike to be an

unfair labor practices strike. In addition, Union picketers and representatives

consistently maintained that the strike was an unfair labor practices strike. As

the Board has met its minimal burden of showing a causal link between the

strike and unfair labor practices, we conclude that the district court did not

abuse its discretion in finding that such a connection existed.

Neither did the district court abuse its discretion when, under the second

prong of the Pilot Freight Carriers test, it determined that the remedy of

reinstatement was “just and proper.” Ordinarily, courts properly leave the

decision whether to reinstate strikers to the Board. The Board’s remedial

36

process may be effective even if the district court does not grant an injunction

ordering reinstatement. In exceptional cases, however, the district court may

37

employ an injunction ordering reinstatement, so as to prevent the destruction

of employee interest in collective bargaining, irreparable injury to the union’s

bargaining power, and the undermining of the effectiveness of any resolution

through the Board’s process.

38

See Larand Leisurelies, Inc. v. NLRB, 523 F.2d 814, 820 (6th Cir. 1975).

35

Pilot Freight Carriers, 515 F.2d at 1192. 36

See, e.g., Pascarell ex rel. NLRB v. Vibra Screw, Inc., 904 F.2d 874, 878-79 (3d Cir. 37

1990).

Pye ex rel. NLRB v. Excel Case Ready, 238 F.3d 69, 74-75 (1st Cir. 2001).

38

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One potential problem here is the time that has elapsed between the strike

and any potential reinstatement. In Pilot Freight Carriers, we refused to hold

that the district court had abused its discretion when it refused to order

reinstatement. The district court in that case justified its reluctance to grant

39

such an injunction on the fact that the Board’s delay of three months in seeking

injunctive relief after discharge demonstrated that harm had already been

incurred and reinstatement thus would serve no purpose. Other circuits,

40

however, have affirmed grants of reinstatement to preserve the status quo ante

pending the Board’s decision. Even though in Muffley, eighteen months

41

elapsed between the employee’s discharge and the filing of the petition, the

district court was not held to have abused its discretion when it concluded the

delay was reasonable, especially given the Board’s need to wait for the ALJ to

make a decision in that complex case. Because the ALJ’s fact finding here

42

aided the district court’s adjudication of Overstreet’s petition, delay alone is not

dispositive.

Other factors support the conclusion that the district court did not abuse

its discretion in granting injunctive relief and ordering reinstatement of the

strikers. The ALJ found, and the district court agreed, that EPD’s discharge of

the strikers and failure to reinstate them was a direct cause of the anti-Union

sentiment among the workers that led to several petitions to decertify the Union

as the workers’ representative. As EPD still had not reinstated thirty-two of the

 515 F.2d at 1193. 39

Id. 40

NLRB v. Electro-Voice, Inc., 83 F.3d 1559, 1573 (7th Cir. 1996); Angle v. Sacks ex rel.

41

NLRB, 382 F.2d 655, 661 (10th Cir. 1967). See also Muffley ex rel. NLRB v. Spartan Mining

Co., 570 F.3d 534, 544-45 (4th Cir. 2009) (concluding that an 18 month delay between

discharge and reinstatement was “troubling” but outweighed by other factors and affirming

a grant of reinstatement).

Accord Muffley, 570 F.3d at 544 (noting same). 42

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fifty-five striking workers, the district court found that a “large nucleus” of

Union support had been replaced because of EPD’s failure to reinstate. Of the

43

eleven Union strikers who were recalled, six had signed the disavowal petition.

These findings of fact, which are not clearly erroneous, support the district

court’s order of reinstatement as necessary to avoid severely diminishing Union

support and, with it, the ability of the Union to negotiate with EPD.

Reinstatement preserves the status quo by returning the workforce to pre-strike

level of Union support. Finally, a refusal to reinstate in this case would merely

reward EPD for its unfair labor practices, as it would gain a benefit from its

decision to deny the right of unfair labor practices strikers to be reinstated after

they stop striking.

The evidence in the record demonstrates that the court did not abuse its

discretion in holding that reinstatement was “just and proper” and equitably

necessary: Reinstatement restores the status quo ante as intended by § 10(j).

D. Dues Check-Off

EPD claims that the district court erred by ordering it to adopt the Union’s

proposed Dues-Check off provision. The court’s order states:

[EPD] 1. Enjoined and Restrained from:

. . .

(b) Engaging in bad-faith bargaining, including engaged in dilatory

tactics regarding the scheduling of bargaining sessions, failing and

refusing to meet regularly with the Union at reasonable intervals,

unreasonably limiting the duration of negotiating sessions, failing

to designated an agent with sufficient bargaining authority,

refusing to accede to a Dues Check-Off provision, and

presenting premature final offers to the Union:. . . .

See Bloedorn ex rel. NLRB v. Francisco Foods, Inc., 276 F.3d 270, 298 (7th Cir. 2001) 43

(refusing to reinstate strikers sends an “unmistakable message” that Union support

jeopardizes employment).

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EPD is correct that the Board cannot remedy bad faith bargaining by compelling

a party to change its position or agree to a specific proposal. And, the Board

44

concedes that the district court may not order a party to agree to a bargaining

proposal. In this context, the order’s use of “accede” creates a requirement that

EPD accept the Dues Check-Off provision offered by the Union, which is beyond

the power of the district court to require.

It is likely that the district court merely copied the ALJ’s draft of the

proposed order—which included the same language—without closely considering

the implications of using the word “accede” in this context. We assume that the

court intended to enjoin EPD from continuing to refuse to negotiate the Dues

Check-Off provision, which is within the powers of the district court and the

Board to compel. Therefore, we modify the court’s injunction by replacing

45

“accede to” with “negotiate,” and we affirm the injunction as thus modified.

III. Conclusion

Injunctions in cases such as this are rare, as they should be. This,

however, is one of those rare instances when an injunction is appropriate, given

the actions of EPD. The district court did not abuse its discretion when it

granted an injunction to reinstate workers because it had reasonable cause to

believe that EPD had violated— and was continuing to violate— the Act, and

that it was necessary to grant the injunction to maintain the status quo ante.

The court was also well within its discretion to order EPD to negotiate Dues

H.K. Porter Co. v. NLRB, 397 U.S. 99, 108 (1970).

44

A panel has the power to modify an injunction. See Pendergest-Holt v. Certain

45

Underwriters at Lloyd’s of London, 600 F.3d 562, 576 (5th Cir. 2010) (“We modify the district

court’s injunction consistent with this opinion . . . .”).

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Check-Off with the Union. As modified, the orders of the district court appealed

from herein are, in all respects, AFFIRMED.

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