2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-7-2011

Robert Chester v. Grane Health Care

Precedential or Non-Precedential: Precedential

Docket No. 11-2573

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 11-2573 & 11-2978

_____________

ROBERT W. CHESTER,

Regional Director of the National Labor Relations Board for 

Region Six,

for and on behalf of the National Labor Relations Board

v.

GRANE HEALTHCARE CO., and/or

EBENSBURG CARE CENTER, LLC, d/b/a CAMBRIA

CARE CENTER, Single Employer

Grane Healthcare Co., and/or Ebensburg Care Center, 

LLC,d/b/a Cambria Care Center, Single Employer,

Appellant in No. 11-2573

Robert W. Chester,

Appellant in No. 11-2978

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Nos. 3-10-cv_00225 and 3:10-cv-00244)

District Judge: Hon. Kim R. Gibson

_____________
2

Argued September 21, 2011

Before: AMBRO, CHAGARES and VANASKIE, Circuit 

Judges

(Filed: December 7, 2011)

Richard J. Antonelli, Esq. (Argued)

Rebecca J. Dick-Hurwitz, Esq.

John A. McCreary, Jr., Esq.

Babst, Calland, Clements & Zomnir

Two Gateway Center

6th Floor

Pittsburgh, PA 15222

Counsel for Appellants & Cross-Appellees

Grane Health Care and/or Ebensburg Care 

Center, LLC

Judith I. Katz, Esq.

Steven L. Sokolow, Esq.

Laura T. Vazquez, Esq. (Argued)

National Labor Relations Board

Division of Advice, Injunction Litigation Branch

1099 14th Street, N.W.

Washington, D.C. 20570

Counsel for Appellee & Cross-Appellant Robert 

W. Chester

_____________
3

OPINION

_____________

VANASKIE, Circuit Judge.

This matter comes before us on cross-appeals from the 

District Court’s ruling on a petition for interim injunctive 

relief sought by the National Labor Relations Board 

(“NLRB”) pursuant to § 10(j) of the National Labor Relations 

Act (“NLRA”), 29 U.S.C. § 160(j). For nearly forty years,

since Eisenberg ex rel. N.L.R.B. v. Hartz Mountain Corp., 

519 F.2d 138 (3d Cir. 1975), we have held that to award 

interim injunctive relief under § 10(j) “a federal district court 

must merely find ‘reasonable cause’ to believe an unfair labor 

practice has occurred and must determine that the relief 

sought is ‘just and proper.’” Kobell v. Suburban Lines, Inc., 

731 F.2d 1076, 1078 (3d Cir. 1984). The District Court in 

this case, following a thoughtful discussion of pertinent 

precedents, determined that our two-prong approach was 

inconsistent with pronouncements of the Supreme Court 

dating back nearly thirty years, to Weinberger v. RomeroBarcelo, 456 U.S. 305 (1982). See Chester ex rel. N.L.R.B. v. 

Grane Health Care Co., ___ F. Supp. 2d ____, 2011 WL 

2517037, at *5-14 (W.D. Pa. June 2, 2011). Applying the

familiar four-factor test applicable to generic preliminary 

injunction motions—likelihood of success on the merits; 

imminent threat of irreparable harm; balance of equities 

favoring interim injunctive relief; and the public interest 

being served by the interim relief—the District Court granted 

the requested interim bargaining order but denied the 

requested interim hiring of several aggrieved individuals. 

Having carefully considered the matter, we conclude that the 

Supreme Court decisions upon which the District Court 
4

relied, having arisen in completely different contexts and 

involving statutory schemes unrelated to the NLRA, do not 

warrant abrogation of our two-prong approach to § 10(j) 

petitions. Furthermore, we will affirm the interim bargaining 

order issued by the District Court, as plainly compelled under 

the two-prong approach. As to the requested interim hiring 

orders, however, we believe that the District Court should, in 

the first instance, determine whether such relief is appropriate 

under our two-prong approach.

I. Facts and Proceedings

Prior to January 1, 2010, Cambria County, 

Pennsylvania owned and operated Laurel Crest Nursing and 

Rehabilitation Center (“Laurel Crest”), a facility located in 

Ebensburg, Pennsylvania. All of the employees of Laurel 

Crest were employed by Cambria County, who as a public 

employer was subject to the Pennsylvania State Public 

Employee Relations Act (“PERA”), 43 P.S. § 1101.301(1). 

Since its certification in 1971 by the Pennsylvania Labor 

Relations Board, the Professional and Public Service 

Employees of Cambria County a/w Laborers’ District Council 

of Western Pennsylvania, Local 1305 (“Local 1305”) was the 

collective-bargaining representative of a unit of nonprofessional employees employed by Cambria County at 

Laurel Crest. Cambria County recognized Local 1305 as the 

exclusive bargaining representative of the unit, and entered 

into a series of collective-bargaining agreements with Local 

1305, the most recent of which ended in December, 2008.

In September, 2009, Appellant Grane Healthcare Co. 

(“Grane”), a private entity that owns and manages several 

Pennsylvania nursing facilities, entered into an asset purchase 
5

agreement with Cambria County to purchase Laurel Crest. 

On January 1, 2010, the purchase became final, and Grane 

assumed operations of Laurel Crest.1

In May, 2010, following an investigation of the charge, 

the Board’s General Counsel, through Robert W. Chester, the 

Acting Regional Director of Region 6 (“Director”), issued a 

complaint and notice of hearing against Grane, asserting

multiple unfair labor practices in violation of § 8(a)(1), (3), 

and (5) of the NLRA, 29 U.S.C. § 158(a)(1), (3), and (5).

In December, 2009, 

Grane officials conducted the initial hiring, and retained most, 

but not all, of the individuals who had been employed at 

Laurel Crest by Cambria County and who applied to be hired 

by Grane. Among the former Laurel Crest employees not 

hired by Grane were several Local 1305 officers, including 

Sherry Hagerich, who was the Local 1305 president, and 

Mark Mulhearn, who was a business manager of Local 1305.

In December, 2009, in anticipation of the impending 

sale, Local 1305 requested by email that Grane recognize 

Local 1305 as the exclusive collective-bargaining 

representative of the nonprofessional employees at Laurel 

Crest. By letter dated January 11, 2010, Grane refused the

Local 1305 request. Local 1305 then filed an unfair labor 

practice charge with the Board. 

 1 When Grane Healthcare Co. acquired Laurel Crest, it 

established a new entity, Ebensburg Care Center, LLC d/b/a 

Cambria Care Center, to manage it. In the District Court, the 

parties disputed whether the two qualified as a “single 

employer” under the NLRA. Since the single employer 

question is not at issue here, Appellants are referred to 

collectively as “Grane.”
6

The complaint contended, inter alia, that: (1) Grane’s refusal 

to recognize and bargain with Local 1305 as the collectivebargaining representative of a bargaining unit of employees 

was a violation of § 8(a)(1) and (5) of the Act; and (2) 

Grane’s failure to hire certain applicants, including Mark 

Mulhearn and Sherry Hagerich, was a violation of § 8(a)(1) 

and (3) of the Act.2 Grane denied all of the alleged violations 

of the Act. 3

 2 The complaint also alleged that Grane and Cambria 

Care constituted a single employer under the Act, and listed 

three applicants in addition to Mulhearn and Hagerich whom

Grane also allegedly refused to hire in violation of the Act. 

Since neither the single employer issue nor the instatement of 

the other three applicants is raised on appeal, we do not 

address those issues here.

3 In January and April, 2010, SEIU Healthcare 

Pennsylvania, CTW, CLC (“SEIU”) also filed unfair labor 

practice charges against Grane. In July, 2010, the Director 

filed a second complaint against Grane based on the SEIU 

charges. The Director subsequently consolidated the two 

complaints.

In July and August of 2010, Administrative Law 

Judge David I. Goldman (“ALJ Goldman”) conducted 

hearings on the unfair labor practice charges.

On August 26, 2010, the Director petitioned the 

District Court for temporary injunctive relief pursuant to § 

10(j) of the Act. The Director requested, in pertinent part, 

that the judge order Grane to: (1) recognize and bargain in 

good faith with Local 1305; and (2) reinstate Hagerich and 

Mulhearn.
7

The District Court decided the petition on the basis of 

the record developed by ALJ Goldman in the administrative 

proceeding below—including the testimony and exhibits 

produced at the hearings as well as the parties’ factual

stipulations—supplemented by testimony and arguments 

adduced at an evidentiary hearing the District Court

conducted. In December, 2010, well before the Court ruled 

on the § 10(j) petition, ALJ Goldman issued his decision in 

the administrative proceedings.

4

 4

ALJ Goldman held, inter alia, that Grane violated § 

8(a)(1) and (5) of the Act by refusing to recognize and 

bargain with Local 1305, and that it violated § 8(a)(1) and (3) 

by refusing to hire Mulhearn and Hagerich.

The District Court observed

that it was “not bound to follow [ALJ] Goldman’s 

conclusions,” and explained that “[t]his administrative record 

and decision is, at best, characterized as persuasive.” 

Chester, 2011 WL 2517037 at *16. Applying the four-factor 

test governing preliminary injunction motions, the District 

Court granted the interim bargaining order but denied the 

interim instatement of Hagerich and Mulhearn.

Both parties now appeal. Grane appeals the temporary 

bargaining order, contending that the District Court

committed error in concluding that the four-factor test was 

satisfied. The Director cross-appeals on two grounds. First, 

he contends that the District Court erred by rejecting our

established two-part test and applying the four-part test 

instead. Second, he argues that the § 10(j) petition qualified 

for injunctive relief under either the two-part or four-part test, 

and that the District Court therefore erred by declining to 

grant the interim instatement order.
8

II. Standard for §10 (j) Injunctive Relief

A.

We begin our analysis by addressing the threshold 

issue of whether the District Court erred in concluding that 

Supreme Court precedent vitiates our established two-part test 

for § 10(j) relief. “The issue of whether a district court 

applied the correct legal standard is a legal question, which 

this Court reviews de novo.” Ahearn v. Jackson Hosp. Corp., 

351 F.3d 226, 234 (6th Cir. 2003).

B.

Congress vested primary jurisdiction over the 

elaboration of labor policy and the adjudication of labor 

disputes in the NLRB. See, e.g., N.L.R.B. v. Truck Drivers 

Local Union No. 449, 353 U.S. 87, 96 (1957) (“The function 

of striking [the] balance [between conflicting legitimate 

interests] to effectuate national labor policy is often a difficult 

and delicate responsibility, which the Congress committed 

primarily to the National Labor Relations Board, subject to 

limited judicial review.”); Phelps Dodge Corp. v. N.L.R.B., 

313 U.S. 177, 194 (1941) (“The exercise of the process [of 

administering the Act] was committed to the Board, subject to 

limited judicial review. Because the relation of remedy to 

policy is peculiarly a matter for administrative competence, 

courts must not enter the allowable area of the Board's 

discretion and must guard against the danger of sliding 

unconsciously from the narrow confines of law into the more 

spacious domain of policy.”). The NLRA provides for the 

adjudication of alleged unfair labor practices through an 

administrative process that involves initial fact-finding and 
9

determination of the charges by an ALJ, whose decision is 

reviewable de novo by the Board. The Act vests Courts of 

Appeals—and in certain circumstances the District Courts—

with judicial review of final Board decisions under a standard 

that requires considerable deference to various Board 

determinations. See 29 U.S.C. §§ 160(e), (f).

As originally enacted in 1935, the NLRA did not 

include any provision authorizing the Board to seek to enjoin 

alleged unfair labor practices pending adjudication of charges 

by the Board.5

The Board shall have power, upon issuance of a 

complaint as provided in subsection (b) of this 

Thus, unfair labor practices—by both unions 

and employers—could persist while administrative processes 

were pursued. Congress sought to remedy this problem in the 

Taft-Hartley Act of 1947 by mandating that the Board seek 

interim injunctive relief in an appropriate district court for 

certain enumerated unfair labor practices by unions, such as 

secondary boycotts, jurisdictional strikes and hot cargo 

contracts, see 29 U.S.C. § 160(l), and by authorizing, but not 

requiring, the Board to seek interim injunctive relief for other 

unfair labor practices. See 29 U.S.C. § 160(j). Specifically § 

10(j), added in 1947, provides:

 5 The Board was only authorized to seek enforcement 

of its final orders by petitioning the appropriate federal court 

of appeals. See 29 U.S.C. § 160(e). The Board could seek 

“appropriate temporary relief or restraining order,” and the 

court could award such relief “as it deems just and proper.”

Id. Similarly, when an aggrieved party sought review of a 

final Board order in an appropriate court of appeals, the court 

could “grant to the Board such temporary relief or restraining 

order as it deems just and proper . . . .” 29 U.S.C. § 160(f).
10

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.

29 U.S.C. § 160(j). The Senate Report on the bill that 

became §10(j) explains the purposes of this section and the 

concerns that motivated it as follows:

[T]he committee is convinced that 

additional procedures must be made available 

under the National Labor Relations Act in order 

adequately to protect the public welfare . . . 

Time is usually of the essence in [§ 10(j) cases], 

and consequently the relatively slow procedure 

of the Board hearing and order, followed many 

months later by an enforcing decree of the 

circuit court of appeals, falls short of achieving 

the desired objectives of the free flow of 

commerce and encouragement of the practice 

and procedure of free private collective 

bargaining. Hence we have provided that the 

Board, acting in the public interest and not in 

vindication of purely private rights, may seek 

injunctive relief in the case of all types of unfair 
11

labor practices . . . . Experience under the 

National Labor Relations Act has demonstrated 

that by reason of lengthy hearing and litigation 

enforcing its order, the Board had not been able 

in some instances to correct unfair labor 

practices until after some substantial injury has 

been done . . . . [I]t has sometimes been 

possible for persons violating the act to 

accomplish their unlawful objective before 

being placed under any legal restraint and 

thereby to make it impossible or not feasible to 

restore or preserve the status quo pending 

litigation.

S. Rep. No. 105, at 8, 27 (1947).

In addressing “for the first time the proper application 

of Section 10(j)” in Hartz Mountain Corp., 519 F.2d at 140, 

we found guidance in Schauffler v. Highway Truck Drivers & 

Helpers, Local 107, 230 F.2d 7 (3d Cir. 1956). In Schauffler,

we held that to warrant § 10(l) relief, a district court must 

“find that there is reasonable cause to believe that a violation 

of the [NLRA] as charged has been committed,” id. at 9, and 

that “a proper exercise of judicial discretion” warrants interim 

injunctive relief. Id. In Hartz Mountain, we adopted the 

same two part approach for § 10(j) petitions—“reasonable 

cause” to believe that the alleged unfair labor practice was 

committed and relief that is “just and proper,” stressing that 

deciding what relief, if any, was “just and proper” would be 

of “critical importance when relief is sought under Section 

10(j) . . . .” Hartz Mountain, 519 F.2d at 141.

Since Hartz Mountain, we have consistently adhered 

to the two-prong standard, see, e.g., Eisenberg ex rel. 
12

N.L.R.B. v. Wellington Hall Nursing Home, Inc., 651 F.2d 

902, 905 (3d Cir. 1981); Hirsch v. Dorsey Trailers, Inc., 147 

F.3d 243, 247 (3d Cir. 1998), elaborating on the “reasonable 

cause” prong in Suburban Lines, 731 F.2d at 1083-84, and the 

“just and proper” prong in Pascarell ex rel. N.L.R.B. v. Vibra 

Screw Inc., 904 F.2d 874, 878-79 (3d Cir. 1990). We are 

joined by the Fifth, Sixth, Tenth and Eleventh Circuits in 

applying this two-part test to § 10(j) petitions. See Overstreet 

v. El Paso Disposal, L.P., 625 F.3d 844, 850 (5th Cir. 2010) 

(upholding its “sequential, two-part[] inquiry” for § 10(j) 

injunctive relief); Ahearn, 351 F.3d at 237 (“The prevailing 

standard district courts in the Sixth Circuit employ when 

considering a § 10(j) petition is the ‘reasonable cause/just and 

proper’ standard.”); Sharp ex rel. N.L.R.B. v. Webco 

Industries, Inc., 225 F.3d 1130, 1133 (10th Cir. 2000) 

(recognizing the two-part test as the standard for district 

courts in that circuit to apply to grant § 10(j) relief); Arlook ex 

rel. N.L.R.B. v. S. Lichtenberg & Co., 952 F.2d 367, 371 

(11th Cir. 1992) (same).

Other courts of appeals, including the Fourth, Seventh, 

Eighth, and Ninth, have rejected the two-part approach, and 

interpret § 10(j)’s just and proper clause as requiring the 

traditional four-factor equitable framework that courts apply 

to grant preliminary injunctions pursuant to Federal Rule of 

Civil Procedure 65(a). See, e.g., Muffley ex rel. N.L.R.B. v. 

Spartan Mining Co., 570 F.3d 534, 542 (4th Cir. 2009); 

Kinney v. Pioneer Press, 881 F.2d 485, 490, n.3 (7th Cir. 

1989); Sharp v. Parents in Cmty. Action, Inc., 172 F.3d 1034, 

1037 (8th Cir. 1999); Miller v. California Pac. Med. Ctr., 19 

F.3d 449, 456 (9th Cir. 1994) (en banc). The First and 

Second Circuits apply a hybrid standard: they apply the twoprong, “reasonable cause/just and proper” test, but expressly 
13

incorporate the four equitable criteria into the “just and 

proper” prong. See, e.g., Pye ex rel. N.L.R.B. v. Sullivan 

Bros. Printers, Inc., 38 F.3d 58, 63 (1st Cir. 1994) (When 

deciding whether “injunctive relief is just and proper . . . the 

district court must apply the familiar, four-part test for 

granting preliminary relief.”)6

Under our Internal Operating Procedures, a panel of 

this Court cannot overrule an earlier binding panel decision; 

only the entire court sitting en banc can do so. See Third 

Circuit I.O.P. 9.1.

; Hoffman v. Inn Credible 

Caterers, Ltd., 247 F.3d 360, 368 (2d Cir. 2001) (“In this 

Circuit, injunctive relief under § 10(j) is just and proper when 

it is necessary to prevent irreparable harm or to preserve the 

status quo. While this standard preserves the traditional 

equitable principles governing injunctive relief, we are 

mindful to apply them in the context of federal labor laws.”)

(citations omitted).

C.

7

 6 Contrary to the District Court’s suggestion, the First 

Circuit in Sullivan Bros. did not drop its “reasonable cause” 

prong. Although noting that this inquiry is of “questionable 

utility,” the First Circuit declined to address its applicability 

because the parties did not challenge it. Sullivan Bros., 38 

F.3d at 64 n.7.

7 “It is the tradition of this court that the holding of a 

panel in a precedential opinion is binding on subsequent 

panels. Thus, no subsequent panel overrules the holding in a 

precedential opinion of a previous panel. Court en banc 

consideration is required to do so.” Third Circuit I.O.P 9.1.

However, “a panel of our Court may 

decline to follow a prior decision of our Court without the 
14

necessity of an en banc decision when the prior decision 

conflicts with a Supreme Court decision.” United States v. 

Tann, 577 F.3d 533, 541 (3d Cir. 2009). See also United 

States v. Singletary, 268 F.3d 196, 202 (3d Cir. 2001) (“[O]ur 

respect for the uniformity of decisions within this Court 

yields when a prior panel’s holding conflicts with a holding 

of the Supreme Court.”); Planned Parenthood of S.E. Pa. v. 

Casey, 947 F.2d 682, 698 (3d Cir. 1991), aff'd in part, rev'd 

in part, 505 U.S. 833 (1992) (“[A] change [by the Supreme 

Court] in the legal test or standard governing a particular area 

is a change binding on lower courts that makes results 

reached under a repudiated legal standard no longer 

binding.”); Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d

Cir. 1996); Cox v. Dravo Corp., 517 F.2d 620, 627 (3d Cir. 

1975) (“We should not countenance the continued application 

in this circuit of a rule, even of our own devising, which is 

patently inconsistent with the Supreme Court's 

pronouncements.”).

The District Court concluded that the Supreme Court’s 

decisions in Romero-Barcelo and Winter v. Natural

Resources Defense Council, Inc., 555 U.S. 7 (2008), require 

application of the traditional four-part equitable test. In 

Romero-Barcelo, the Governor of Puerto Rico and residents 

of the island sought to enjoin the Navy’s use of an island off 

the Puerto Rican coast for weapons training exercises, 

claiming that the occasional discharge of weapons harmed the 

water quality, and that because the Navy had not obtained a 

permit, its conduct violated the permit requirements of the 

Federal Water Pollution Control Act (“FWPCA”), 33 U.S.C. 

§ 1251, et seq. See 456 U.S. at 307. The First Circuit held 

that the FWPCA requires a district court to immediately 

enjoin conduct in violation of the permit requirements and 
15

thereby preclude the exercise of traditional equitable 

discretion. Id. In reversing this decision, the Court 

emphasized that the judicial authority to grant injunctive 

relief is fundamentally rooted in principles of equity: “The 

Court has repeatedly held that the basis for injunctive relief in 

the federal courts has always been irreparable injury and the 

inadequacy of legal remedies.” Id. at 312. The Court 

confirmed the four-factor test, which incorporates these 

equitable considerations, as the applicable standard for 

injunctive relief. Id. at 312-13. In this regard, it described 

the high standard for overcoming the presumption that the 

four-factor test applies: “Unless a statute, in so many words, 

or by a necessary and inescapable inference, restricts the 

court’s jurisdiction in equity, the full scope of that jurisdiction 

is to be recognized and applied.” Id. at 313 (quoting Porter v. 

Warner Holding Co., 328 U.S. 395, 398 (1946)).

The Court reiterated this point in Winter. In that case, 

environmental groups sought to enjoin the Navy from 

conducting sonar training exercises off the coast of southern 

California on the ground that the sonar devices harmed 

marine mammals. 555 U.S. at 12-14. Despite the absence of 

any evidence that marine mammals had been harmed by the 

Navy’s training exercises, id. at 12, the district court granted 

the injunction and the Ninth Circuit affirmed based on a 

“possibility of irreparable injury.” 518 F.3d 658, 696 (9th 

Cir. 2008). In overturning the injunction, the Court 

reaffirmed the four-factor equitable requirements, asserting 

that plaintiffs “must” satisfy them to qualify for injunctive 

relief. 555 U.S. at 20. In this respect, the Court rejected the 

Ninth Circuit’s standard as “too lenient,” holding that 

irreparable injury must be “likely in the absence of an 

injunction,” because a lower standard of a mere possibility “is 
16

inconsistent with our characterization of injunctive relief as 

an extraordinary remedy that may only be awarded upon a 

clear showing that the plaintiff is entitled to such relief.” Id.

at 22.

The District Court in the present matter opined that

these two cases “suggest a clear and consistent message to the 

lower courts: courts are to apply the traditional four-factor 

test in the absence of a ‘necessary and inescapable’ 

congressional intent to depart from traditional equitable 

standards. § 10(j) lacks such intent.” Chester, 2011 WL 

2517037 at *4 (citing Romero-Barcelo, 456 U.S. at 313). In 

our view, neither Romero-Barcelo nor Winter present a 

conflict with our § 10(j) rulings sufficient to enable us to 

reverse nearly forty years of precedent.

First, neither Romero-Barcelo nor Winter involved 

statutory schemes analogous to the NLRA. Notwithstanding 

the broad language endorsing the primacy of the four-factor 

test, the Court rendered its decisions in those cases on facts 

that presented the standard scenario for courts granting 

injunctive relief. In both cases, plaintiffs sought injunctions 

from district courts that also had full jurisdiction to decide the 

merits of the alleged statutory violations. See RomeroBarcelo, 456 U.S. at 307-308; Winter, 555 U.S. at 16-17. In 

the context of such generic circumstances, where the courts’

jurisdiction over the merits was not otherwise restricted, the 

Court had no occasion to qualify or condition its broad 

affirmation of the full scope of equity discretion.

Nothing in these cases suggests that the Court 

contemplated the relatively unusual scenario of interim 

injunctive relief in the context of a pending unfair labor 

practice proceeding. In light of the purposes behind this 
17

provision and the Act, we believe that the holdings in 

Romero-Barcelo and Winter do not extend to the § 10(j) 

context. Indeed, the NLRA erects a unique statutory scheme: 

it authorizes district courts to grant interim injunctive relief in 

labor dispute cases, an entire category over which they have 

no jurisdiction to decide the merits. Instead, Congress 

designated the NLRB as the entity with the requisite expertise 

in unfair labor practices, and the merits of those claims are 

adjudicated through an administrative process that is largely

independent of the courts.

This specialized scheme distinguishes § 10(j) 

injunctive relief from the generic context, where district 

courts determine whether to grant relief in cases over which 

they possess both the jurisdiction and competence to decide 

the merits. Congress’ clear purpose in creating § 10(j) was 

not to limit the scope of the Board’s authority to decide 

violations, but to preserve its powers to do so by giving the 

NLRB an opportunity to seek an injunction of alleged 

violations before an injury becomes permanent or the Board’s 

remedial purpose becomes meaningless.

Moreover, the Board does not seek interim equitable 

relief to vindicate private rights, but acts instead in the public 

interest.8

 8 The Board’s decision to initiate § 10(j) proceedings 

follows a multi-step investigation and evaluation process. See

Office of the Gen. Counsel, U.S. Nat’l Labor Relations Bd., 

Electronic Redacted Section 10(j) Manual Users Guide 11-14 

(2002). The local region of the Board first conducts an 

investigation and evaluation of the unfair labor practice 

charge that mirror the two-part inquiry. In its investigation, 

the Board determines “whether there is evidence establishing 

See Vibra Screw, 904 F.2d at 876. This factor also 
18

distinguishes § 10(j) petitions from ordinary preliminary 

injunction motions. Section 10(j) does not so expand the 

scope of the district court’s role in labor disputes as to permit 

it to intrude upon the Board’s exclusive authority to decide 

the merits of the cases. The legislative scheme is therefore 

inconsistent with a full grant of equity jurisdiction to the 

district courts, which would permit them to exercise their own 

discretion in evaluating the likelihood of success on the 

merits, thereby infringing on the province of the Board. We 

do not believe the Court intended its decisions in RomeroBarcelo or Winter to extend to the context of such a distinct 

statutory scheme. We therefore conclude that those cases are 

not conflicting authorities that require us to reverse our 

established precedent.

Notably, three of our sister circuits have retained the

two-part test in spite of Romero-Barcelo and Winter. In 

Overstreet, the Fifth Circuit rejected arguments advanced in 

the respondent’s briefs that Romero-Barcelo required the 

four-part test. 625 F.3d at 851; Brief of Appellant at 36, 

Overstreet v. El Paso Disposal, L.P., 625 F.3d 844 (5th Cir. 

2010) (No. 09-51006). The Court distinguished § 10(j) from 

 

a violation of the Act” and also “whether a Board order in due 

course will be inadequate to protect statutory rights.” Id. at 

10. After its investigation, the Board decides “whether 10(j) 

proceedings are appropriate” by considering the evidence, 

threat of remedial failure, and “just and proper” theories and 

evidence. Id. at 11. The region may then submit a 

recommendation for § 10(j) proceedings to the Board’s 

General Counsel, who reviews the evidence and may submit a 

request for 10(j) injunctive relief to the Board, which makes 

the final decision authorizing or denying a § 10 (j) petition. 

Id. at 12-14.
19

other injunctive relief when it observed that the “‘traditional 

rules of equity may not control the proper scope of § 10 (j) 

relief,’” and explained: “A requirement...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...our case law[] supports replacing 

the [two-part] test we currently use with” a test that 

incorporates the “traditional four-part test for equitable 

relief.” 625 F.3d at 851 (quoting Boire v. Pilot Freight

Carriers, Inc., 515 F.2d 1185, 1192-93 (5th Cir. 1975). See 

also Ahearn, 351 F.3d at 235 (“If the current 10(j) standard 

were in clear contravention of Supreme Court precedent, it 

seems unlikely that this or any other circuit would have 

continued to adhere to it for two decades without concern.”); 

Webco, 225 F.3d at 1137 (“[W]e will not reconsider this 

circuit’s longstanding Angle two-part test in favor of a 

traditional equitable analysis.”).

Indeed, even those courts of appeals that have viewed 

Romero-Barcelo and Winter as requiring the four-part 

equitable test for § 10(j) relief have made modifications to the 

four-part test to accommodate the purposes and goals of the 

NLRA. For example, the Ninth Circuit has explained that 

courts must consider the four equitable criteria “through the 

prism of the underlying purpose of § 10(j), which is to protect 

the integrity of the collective bargaining process and to 

preserve the Board’s remedial power while it processes the 

charge.” Miller, 19 F.3d at 459-60. The Miller Court also 

observed that it is “necessary to factor in the district court’s 

lack of jurisdiction over unfair labor practices, and the 

deference accorded to NLRB determinations by the courts of 

appeals.” Id. at 460. Accordingly, that Court holds that “the 

Board can make a threshold showing of likelihood of success 
20

by producing some evidence to support the unfair labor 

practice charge, together with an arguable legal theory.” Id.

The Fourth Circuit, holding that Romero-Barcelo

required it to apply the four-part test to § 10(j), was careful to 

note: “But, of course, district courts should apply this test in 

light of the underlying purpose of § 10(j): preserving the 

Board’s remedial power pending the outcome of its 

administrative proceedings.” Spartan Mining, 570 F.3d at 

543. See also Bloedorn v. Francisco Foods, Inc., 276 F.3d 

270, 287 (7th Cir. 2001) (“But, in evaluating the likelihood of 

success, it is not the district court's responsibility, nor is it 

ours, to rule on the merits of the Director's complaint; that is 

the Board's province. The court's inquiry is confined to the 

probability that the Director will prevail.”). Similarly, the 

Second Circuit, which applies a hybrid test, follows the same 

considerations when applying the four-part test under its “just 

and proper” prong. See, e.g., Hoffman, 247 F.3d at 368.

Thus, even the courts that follow Romero-Barcelo

account for the relatively unique context and purposes of § 

10(j), and none interprets the Court’s precedent as permitting 

the district courts to have full equity jurisdiction in this 

context. If even the courts of appeals that apply the 

traditional four factors for preliminary injunctions to this 

context do not do so strictly, we comfortably conclude that 

the Supreme Court rulings do not so clearly conflict with our 

precedent as to mandate our abrogation of that precedent.

Even assuming arguendo that the Court’s decisions 

apply to § 10(j) relief, we do not believe that our two-part 

standard is necessarily incompatible with the requirements of 

the traditional four-part test. The District Court opined that 

our two-prong approach to § 10(j) petitions fails to 
21

encompass the quartet of considerations ordinarily governing 

preliminary injunction motions. The Court explicated: “The 

Third Circuit’s § 10(j) standard does not even require a 

showing of a ‘possibility’ of harm; only a showing of 

‘reasonable cause’ that a labor violation occurred.” Chester, 

2011 WL 2517037 at *9. It also asserted that the two-part 

test does not take into account the public interest or a 

balancing of harms: “The Third Circuit standard, other than 

references to ‘just and proper’ remedies, does not explicitly 

countenance these two crucial equitable factors.” Id. It 

further claimed, “[u]nder the Third Circuit’s precedents, no 

showing of harm is required,” id. at 12, and “merely a 

showing of ‘reasonable cause’ that a labor violation occurred 

is sufficient to issue an injunction, if said relief is ‘just and 

proper.’” Id.

The District Court’s conclusions about the test 

misapprehend our guidance with respect to district court 

consideration of § 10(j) petitions. In this regard, it is simply 

not true that the two-part test only requires “reasonable 

cause” to believe the Director will prevail before the Board. 

Quite to the contrary, the test incorporates various

considerations that correspond to each of the Winter factors.

As an initial matter, it bears explaining that the 

“reasonable cause” analysis is not the deferential rubber 

stamp that the District Court and Grane characterize it to be. 

To establish reasonable cause in the Third Circuit, “there 

must be a substantial, non-frivolous, legal theory, implicit or 

explicit, in the Board’s argument, and second, taking the facts 

favorably to the Board, there must be sufficient evidence to 

support that theory.” Vibra Screw, 904 F.2d at 882.

Significantly, the circuits that apply the four-part test use a 
22

substantially similar standard. See, e.g., Miller, 19 F.3d at 

460.

Moreover, “[t]he Chancellor does not abdicate his 

powers merely upon a showing that the Regional Director's 

theories surpass frivolity. He maintains some power to do 

equity and mold each decree to the necessities of the case.” 

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

omitted). In other words, the § 10(j) inquiry “necessarily 

subsumes equitable considerations.” Webco, 225 F.3d at 

1137, n.3.

The standard we use to determine whether injunctive 

relief would be just and proper is “informed by the policies 

underlying § 10(j),” Dorsey Trailers, 147 F.3d at 247, looking 

in particular to “the general communication the law-making 

bodies were attempting to send to the courts and the public in 

passing the relevant act.” Suburban Lines, 731 F.2d at 1090. 

“In fashioning this provision, Congress sought to ensure that 

the Board would be able to exercise effectively its ultimate 

remedial power.” Eisenberg ex rel. N.L.R.B. v. Lenape 

Products, Inc., 781 F.2d 999, 1003 (3d Cir. 1986). “[T]he 

focus in a § 10(j) determination is on the public interest, and 

‘the unusual likelihood . . . of ultimate remedial failure’ by 

the NLRB.” Dorsey Trailers, 147 F.3d at 247 (citation 

omitted) (quoting Suburban Lines, 731 F.2d at 1091 n.26). 

See also Vibra Screw, 904 F.2d at 879 (“[T]he critical

determination is whether, absent an injunction, the Board’s 

ability to facilitate peaceful management-labor negotiation 

will be impaired.”); Lenape Products, 781 F.2d at 1003 

(“[T]he district court must find that the issuance of an 

injunction is ‘just and proper,’ i.e., that it is in the public 

interest to grant the injunction, so as to effectuate the policies 
23

of the National Labor Relations Act or to fulfill the remedial 

function of the Board.”) (citing Wellington Hall, 651 F.2d at

906-07).

Therefore, the goal of preserving the Board’s ultimate 

remedial power guides the courts to focus on whether the 

ongoing practices would create “irreparable” harms, i.e., 

injuries that could not be remedied by the Board’s final 

decision. In conducting this inquiry, the courts weigh the 

same kinds of harms that factor into the traditional equitable 

test. They consider the “likelihood of harm to the bargaining 

process,” Dorsey Trailers, 147 F.3d at 247 (citation omitted), 

and the overall public interest in “the promot[ion] of 

wholesome and mutually acceptable labor relations and the 

settlement of labor disputes through collective bargaining 

between employees and their employer.” Vibra Screw, 904 

F.2d at 876 (citation omitted). In evaluating the net benefits 

of injunctive relief, the courts also weigh the relative harms it 

may prevent against the harms it may produce. Id. at 878-79 

(evaluating how “the chilling effect of management 

retaliation may outlast the curative effects of any remedial 

action the Board might take . . . .”). The Courts do not only 

weigh the harms to the Board, but also the harms injunctive 

relief poses to the employer. See, e.g., Wellington Hall, 651 

F.2d at 907.

Indeed, we have denied injunctive relief where we

found insufficient evidence of irreparable harm, making 

interim equitable relief not “just and proper.” See, e.g., 

Suburban Lines, 731 F.2d at 1095; Hartz Mountain, 519 F.2d 

at 143. For instance, we affirmed the denial of § 10 (j) relief 

in Suburban Lines because “failure to grant interim 

reinstatement relief could not produce irreparable injury” and 
24

“erroneously granted interim relief would irreparably injure” 

certain employees and the respondent in that case. 731 F.2d 

at 1092. In Lenape Products, 781 F.2d at 1003-04, we held 

that § 10 (j) relief was not warranted because “there was no 

evidence that union activity would be ‘chilled’” and because 

“the size and intimacy of the group of the employees who 

walked out was such that if the Board ultimately orders 

reinstatement, its organizational efforts could be resumed.”

In summary, the two-part test does incorporate 

equitable factors into its analysis that other circuits consider 

when applying the four-part test to § 10(j) relief. The 

reasonable cause prong has substantial overlap with the 

likelihood-of-success inquiry. Likewise, the “just and 

proper” prong collapses the other three equitable factors into 

one comprehensive analysis. Under this inquiry, the court 

determines whether an injunction is necessary to preserve the 

Board’s remedial powers, which incorporates a weighing of 

relative harms to the bargaining process, employees’ rights, 

and the likelihood of restoring the status quo absent injunctive 

relief, along with the public interests implicated by the labor 

disputes. In light of these substantial similarities, we think 

that even if the Court’s decisions in Romero-Barcelo and 

Winter apply to the context of § 10(j) relief, our two-part test 

substantially complies with the requirements insofar as it does 

analyze each of the equitable factors.

The primary difference is that the two-part test 

accommodates the purposes of § 10(j) by granting a sufficient 

measure of deference to the Board to prevent the district court 

from overstepping its bounds and deciding the merits of 

alleged unfair labor practices. As this Court has explained, 

the “just and proper” standard in § 10(j) is intended to limit 
25

the district court’s role: “the phrase ‘just and proper’ [is] a 

method of cabining the otherwise unfettered discretion of the 

district court to fashion labor law under section 10(j) wholly 

according to its own notions of fairness and efficiency.” 

Suburban Lines, 731 F.2d at 1089. See also Ahearn, 351 F.3d 

at 237 (“A district court also must be mindful that 

‘[p]roceedings pursuant to § 10(j) are subordinate to the 

unfair labor practice proceedings to be heard before the 

Board.’. . . Consequently, it is not the job of the district court, 

in considering a § 10(j) petition, ‘to adjudicate the merits of 

the unfair labor practice case.’”) (citation omitted) (quoting 

Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d 26, 28 (6th 

Cir. 1988)). Accordingly, the District Court erred in rejecting 

our two-prong test for § 10(j) petitions.

III. Merits of § 10(j) Petition

A. 

Having concluded that the district court applied the 

incorrect legal standard to the Director’s § 10(j) petition, we 

turn now to consider whether the court erred in granting the 

interim bargaining order. Although the district court applied 

the incorrect four-part standard in evaluating the Director’s § 

10(j) petition, we find it unnecessary to remand this issue for 

analysis under the two-part test, which involves analysis of 

similar factors under a less strict standard.

Interim Bargaining Order

9

 9 See, e.g., Vibra Screw, 904 F.2d at 878, 879, 882 

(where the district court based its “just and proper” analysis 

on the wrong standard, and did not address the “reasonable 

cause” prong, the Third Circuit declined to remand, and 

instead made the “exceedingly simple” reasonable cause 

determination itself, found that the injunction was “just and 

 We think the 
26

undisputed facts on the record show that the interim 

bargaining order is plainly warranted under the two-part test.

1. Reasonable Cause

To establish reasonable cause to believe that the 

Director is likely to prevail on his claim, we must find that 

this claim is based on a legal theory that is “substantial and 

not frivolous” and that the facts, when taken in a favorable 

light to the Board, are sufficient to support that theory. Vibra 

Screw, 904 F.2d at 882. In evaluating reasonable cause, we 

are mindful that it is not our role to adjudicate the merits of 

the underlying claim.

Under § 8(a)(5) of the Act, an employer has a duty to 

“bargain collectively with the representatives of his 

employees, subject to the provisions of [section 9(a)] of this 

title.” 29 U.S.C. §§ 158(a)(5). A new employer has a duty 

under § 8(a)(5) to bargain with the incumbent union that 

represented the predecessor’s employees when there is a 

“substantial continuity” between the predecessor and 

successor enterprises. Fall River Dyeing & Finishing Corp. 

v. N.L.R.B., 482 U.S. 27, 43 (1987).10

 

proper,” and remanded the case with directions to grant 

injunction); Frye ex rel. N.L.R.B. v. Specialty Envelope, Inc., 

10 F.3d 1221, 1225 (6th Cir. 1993) (where the district court 

did not apply the correct standard for § 10(j) relief, the Sixth 

Circuit declined to remand and decided the question itself).

10 Other factors reflective of continuity include 

similarity between, inter alia, the business operations, 

services provided, customers, jobs performed by employees, 

and working conditions. Fall River, 482 U.S. at 43.

This includes such 
27

continuity of the workforce that the new employer “would 

confront the same union representing most of the same 

employees in the same unit.” N.L.R.B. v. Burns Int’l Sec. 

Servs., Inc., 406 U.S. 272, 280 n.4 (1972). The question of 

whether there is reasonable cause to believe that Grane’s 

conduct constitutes an unfair labor practice depends on

whether there is reasonable cause to believe that the Director 

will prevail on his claim that Grane is a legal successor to 

Cambria County, and therefore had a duty to recognize and 

bargain with Local 1305.

Grane does not dispute that the facts on the record 

satisfy the standard for substantial continuity: it did hire a 

majority of the Laurel Crest employees and continues the 

operations of Laurel Crest as a nursing home. However, 

notwithstanding that it qualifies as a successor employer 

under the substantial continuity test, Grane contends that 

successorship principles do not apply in the context of a 

transition from a public to private employer. In this respect, 

Grane observes that because Cambria County was a “public 

employer” under the terms of state labor law, PERA, 43 P.S. 

§ 1101.301(1), and was expressly excluded from coverage 

under the NLRA, Grane therefore cannot be a “predecessor 

employer” under the Act. Likewise, it argues that because

Local 1305 was certified under state labor laws rather than 

the Act, it too cannot qualify as an “incumbent Union” within 

the terms of the Act.

The gravamen of Grane’s arguments is that the 

successorship principle has no application in the context of a 

transition from public to private employers. In this regard, it 

explains that Local 1305 is not a “labor organization” within 

the terms of section 9(a) of the Act because it “has never been 
28

‘selected’ by ‘employees’ of an ‘employer’ under Section 

9(a).” (Grane’s Br. at 25.)

11

The Director’s successorship theory is hardly a novel 

legal position. In several cases, the courts and the Board have 

applied successorship principles in the context of the public to 

private transition. In Dean Transp., Inc., 350 NLRB 48 

(2007), enf’d, 551 F.3d 1055 (D.C. Cir. 2009), the Board held 

that a union certified by a state agency was a labor 

organization under the Act, and the fact that the predecessor 

was a public employer did not prevent the court from 

imposing a successorship obligation on the private employer. 

As a result, Grane observes that 

neither Local 1305 nor Cambria County “had any status under 

the Act before January 1, 2010,” and that Grane therefore 

“has been placed into the metaphysical quandary of being the 

successor employer to a non-existent predecessor.” (Id. at

26).

It is not our task to decide the merits of Grane’s 

arguments that successorship principles should be applied in 

the context of public to private transitions. Rather, our 

“reasonable cause” inquiry directs us to examine whether the 

Director’s legal theory is “substantial and non-frivolous.” We 

have little difficulty concluding that standard is met, and there 

is reasonable cause to believe that the Director will prevail in 

establishing that Grane is a successor employer.

 11 Section 9(a) states: “Representatives designated or 

selected for the purposes of collective bargaining by the 

majority of the employees in a unit appropriate for such 

purposes, shall be the exclusive representatives of all the 

employees in such unit for the purposes of collective 

bargaining.” 29 U.S.C. § 159(a).
29

Id. at 50-51. In applying the Fall River “substantial 

continuity” test, the Board noted that it “has applied this test 

even where, as here, the predecessor is a public entity.” 350 

NLRB at 58. See also Cmty Hospitals of Cent. Cal. v. 

N.L.R.B., 335 F.3d 1079, 1084 (D.C. Cir. 2003) (“The change 

from public to private ownership of the hospital does not 

undermine the Board’s finding that Community was a 

successor.”); Lineback v. Irving Ready-Mix, Inc., 653 F.3d 

566, 573 (7th Cir. 2011) (noting “[t]he solid line of cases . . . 

support[ing] the district court’s conclusion that the Director is 

likely to succeed on the merits” of his successorship claim in 

the context of a public to private transition); Van Lear Equip., 

Inc., 336 NLRB 1059, 1064 (2001) (“[T]he successorship 

doctrine continues to apply even though the predecessor . . . is 

a public employer.”); Lincoln Park Zoological Soc., 322

NLRB 263, 364-65 (1996), enf’d 116 F.3d 216, 220 (7th Cir. 

1997) (applying the successorship principle in the context of a 

public to private transition).

In light of this case law it is evident that there is 

reasonable cause for the charge that Grane’s refusal to 

recognize and bargain with the incumbent union, Local 1305, 

is a violation of the Act.

2. Just and Proper

To determine whether injunctive relief is “just and 

proper,” we consider the “policies underlying § 10(j),” 

Dorsey Trailers, 147 F.3d at 247, including the public interest 

in “the settlement of labor disputes through collective 

bargaining,” Vibra Screw, 904 F.2d at 876 (quoting Hartz 

Mountain, 519 F.2d at 142), and “whether the failure to grant 

interim injunctive relief would be likely to prevent the Board, 

acting with reasonable expedition, from effectively exercising 
30

its ultimate remedial powers.” Suburban Lines, 731 F.2d at 

1091-92. The Director argues that the interim bargaining 

order is just and proper because Grane’s current refusal to 

recognize or bargain with Local 1305 is depriving employees 

of the benefits of collective bargaining and causing 

irreparable erosion of Union support. The Director argues 

that this damage will render the Board’s ultimate remedial 

order ineffective. Grane contends that the Director’s 

evidence is inadequate to substantiate these claims, disputing 

several factual claims made by the Director and arguing that

the lack of adequate evidence to establish a threat to the 

Board’s remedial authority forecloses a finding that the 

bargaining order is just and proper.

To establish the chilling effect that Grane’s conduct 

has had on the employees, the Director cites testimony 

adduced at the ALJ hearings from current and former Laurel 

Crest employees and Local 1305 officers. Their testimony 

cited conversations with five identified employees, who had 

reportedly said that they felt that they were being watched by 

Grane officials; were scared to support the Union; were 

constantly reminded that there was no union; and expressed 

concerns about the Union’s status and future. The testimony 

also establishes that other public Union activities, including 

regular meetings and pre-takeover picketing, have ceased 

since Grane’s refusal to recognize Local 1305. Grane 

contends that this evidence is insufficient to prove that the 

Union’s loss of support will cause irreparable harm, and 

argues that Union support was tepid to begin with. In this 

respect, Grane cites the attendance records of the Union 

meetings. Because the parties dispute the total number of 

Local 1305 members, the parties also dispute the relevance of 

these records as a measure of Union support.
31

It is well-recognized that when a successor employer 

refuses to recognize an incumbent union, it “inflicts a 

particularly potent wound on the union and its members.”

Bloedorn, 276 F.3d at 298. Indeed, “[g]iven the uncertainties 

that both the union and its members face during the 

transition,” a successor’s denial of recognition “disrupts the 

employees' morale, deters their organizational activities, and 

discourages their membership in unions.” Id. (quoting Fall 

River, 482 U.S. at 49-50). An ultimate Board order that 

Grane recognize the Union may be ineffective if the Union 

has lost significant support.

Moreover, a bargaining order is also necessary to 

preserve the “fruits of the collective bargaining process that 

otherwise would have been available” to the employees prior 

to such an order. Suburban Lines, 731 F.2d at 1093. The 

courts have recognized this harm as a basis for injunctive 

relief even under the stringent four-factor test. See, e.g., 

Bloedorn, 276 F.3d at 299 (“Meanwhile, the RSI employees 

whom FFI did hire are working without the advocacy of their 

chosen representative. Assuming that the Board ultimately 

orders FFI to bargain with the Union, such a forward-looking 

order cannot fully compensate the employees of FFI for the 

variety of benefits that good-faith collective bargaining with 

the Union might otherwise have secured for them in the 

present.”). For these reasons, we find that the interim 

bargaining order is necessary to preserve the Board’s 

remedial powers, and therefore is “just and proper.”

B. 

Finally, we turn to the district court’s denial of the 

interim instatement order for Hagerich and Mulhearn. The 

District Court denied this order under the more demanding 

Interim Instatement Order
32

standard of the four-part test. Unlike the interim bargaining 

order, however, we do not think there are sufficient 

undisputed facts on the record for this Court to evaluate 

whether the order should be granted under the two-part test. 

We therefore remand this aspect of the Director’s petition to 

the District Court to conduct an analysis of the facts under the 

two-part test.

IV. Conclusion

For the reasons stated above, we affirm the District 

Court’s grant of the interim bargaining order, but remand the 

Director’s request for an interim instatement order to the 

District Court to determine whether relief is appropriate under 

the two-part test.