1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-5-1998

Hirsch v. Dorsey Trailers Inc

Precedential or Non-Precedential:

Docket 97-7542

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1998 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Hirsch v. Dorsey Trailers Inc" (1998). 1998 Decisions. Paper 131.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/131
Filed June 5, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-7542 

PETER W. HIRSCH, Regional Director of the Fourth 

Region of the National Labor Relations Board, for and on 

behalf of the National Labor Relations Board, 

 Appellant 

v. 

DORSEY TRAILERS, INC., Northumberland PA Plant 

*Amended per the Clerk's Order of 12/5/97 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. No. 97-cv-00148) 

Argued May 21, 1998 

Before: SLOVITER, GREENBERG and GIBSON,* 

Circuit Judges 

(Filed June 5, 1998) 

Ellen A. Farrell 

Judith Katz 

Jayme L. Sophir (Argued) 

National Labor Relations Board 

Washington, D.C. 20570 

 Attorneys for Appellant 

_________________________________________________________________ 

* Hon. John R. Gibson, United States Senior Circuit Judge for the United 

States Court of Appeals for the Eighth Circuit, sitting by designation. 
 Michael S. Mitchell (Argued) 

 Fisher & Phillips 

 New Orleans, LA 70170 

 Attorney for Appellee 

 Stephen A. Yokich (Argued) 

 United Auto Workers, International 

 Union 

 Washington, D.C. 20036 

 Attorney for Amicus-Appellant 

 International Union, United 

 Automobile, Aerospace and 

 Agricultural Implement Workers of 

 America 

OPINION OF THE COURT 

SLOVITER, Circuit Judge. 

Appellant, Peter W. Hirsch, Director of Region Four, on 

behalf of the National Labor Relations Board ("NLRB" or 

"the Board"), appeals from the district court's order denying 

a temporary injunction under S 10(j) of the National Labor 

Relations Act ("NLRA"), codified at 29 U.S.C. S 160(j). The 

injunction was sought pending the resolution by the NLRB 

of unfair labor practice charges against appellee Dorsey 

Trailers Inc. The district court concluded that a S 10(j) 

injunction would not be "just and proper," the statutory 

standard for an injunction under the NLRA. The Board 

timely appealed. The International Union of United 

Automobile, Aerospace and Agricultural Implement Workers 

of America, Local 1868 ("UAW" or "the union"), which is the 

bargaining representative of the workers affected by the 

denial of injunctive relief, has filed a brief amicus curiae in 

support of the Board's appeal. 

We have jurisdiction under 28 U.S.C. S 1291, 1292(a)(1) 

and 29 U.S.C. S 160(j). Our review of the denial of a S 10(j) 

injunction is for abuse of discretion, see Eisenberg v. 

Lenape Products, Inc., 781 F.2d 999, 1003 (3d Cir. 1986), 

and we have held we may reverse the denial of a S 10(j) 

 2 
injunction if the factual findings do not "substantially relate 

to the conclusion reached" by the district court. Kobell v. 

Suburban Lines, Inc., 731 F.2d 1076, 1092 (3d Cir. 1984). 

I. 

This appeal centers on the circumstances surrounding 

the December 1995 closure of a plant in Northumberland, 

Pennsylvania, that once employed 200 UAW workers who 

manufactured dump and flatbed trailers for Dorsey. The 

facts set forth below are taken from the record and, unless 

noted, are not in dispute, although the exact dates are not 

always clear. In February 1995, Dorsey and the UAW began 

negotiating a new Collective Bargaining Agreement (CBA) 

because the prior CBA was due to expire in March 1995. 

The primary issues concerned overtime and subcontracting. 

Dorsey warned that if no agreement could be reached or if 

the union were to strike, Dorsey would close the plant. App. 

at 47-49. Negotiations were conducted between February 

and May but the parties were unable to reach agreement on 

a new contract. 

The union began a strike on June 26, 1995, to protest 

alleged unfair labor practices of Dorsey. App. at 50. On 

June 30, 1995, the union filed the first of four unfair labor 

practice charges against the employer. In September 1995, 

Dorsey began to negotiate for the purchase of a new plant 

in Cartersville, Georgia, and on October 5, 1995, reached a 

basic agreement in principle to purchase the plant. App. at 

145-46. It had concluded that it would be to its financial 

benefit to operate the Georgia plant rather than the 

Northumberland facility. App. at 138-41. On October 9, 

1995, Dorsey notified the union of its impending purchase 

and its intention to move the Northumberland work there. 

However, it also offered to continue to bargain over the 

"effects of that decision and the decision itself." App. at 

189. Thereafter, the union unconditionally offered to come 

back to work but by then Dorsey was seeking substantial 

concessions. App. at 164. Further negotiations proved 

fruitless. Dorsey described the union's concessions on 

overtime as "too little too late." App. at 66; 177.

On November 9, 1995, Dorsey formally notified the union 

of its decision to close the Northumberland plant and move 

 3 
its operations to Georgia. At that time, Dorsey began 

moving the plant equipment. App. at 181. On November 16, 

1995, the union filed the fourth of its unfair labor charges 

against Dorsey alleging that Dorsey improperly transferred 

work to the Georgia plant. The union asked the Board to 

seek temporary injunctive relief under S 10(j), but the Board 

did not act on the request at that time. Dorsey shut down 

the plant on December 29, 1995, and has attempted to sell 

it since then. App. at 252-53. 

There was a lapse in Dorsey's operations resulting from 

the move, and it began its Georgia operations in March 

1996. When it determined that it could not manufacture at 

the new plant all of the trucks that it had manufactured at 

Northumberland, Dorsey decided it would limit its Georgia 

plant to the manufacture of flatbed trailers. In July 1996 it 

purchased a South Carolina facility to build dump trailers, 

previously manufactured in Northumberland. 

Dorsey estimates its total costs of moving the 

Northumberland operations to Georgia and South Carolina 

exceeded $900,000, app. at 197, and the costs of 

maintaining the closed Northumberland plant for the first 

six months of 1997 to be $130,000, app. at 198, and that 

continued maintenance costs continue to be a terrible 

drain. 

The Board issued a consolidated complaint in August

1996 (later amended in October 1996) charging Dorsey with 

numerous violations of the NLRA, including threatening 

employees with closure of the plant if the workers called a 

strike, refusing to provide company information necessary 

for bargaining, unilaterally implementing a new attendance 

policy, and refusing to fairly bargain regarding the transfer 

of work to Georgia. Following a three-day trial in November 

1996, the Administrative Law Judge issued a 

comprehensive fifty-six page decision on December 1, 1997, 

finding in large part that Dorsey committed the alleged 

unfair labor practices. See ALJ Decision, at 52. The ALJ's 

decision ordered a remedy that included the restoration of 

the Northumberland plant. Id. at 54-56. Dorsey filed 

exceptions to the decision on January 29, 1998, and the 

matter is currently pending before the Board. We were 

advised that briefing was completed recently. 

 4 
Although the union had asked the Board to file a request 

for a S 10(j) injunction as early as November 1995, the 

Board did not file such a petition with the district court 

until January 27, 1997. In its Petition for a S 10(j) 

injunction, the Board sought to prevent Dorsey from selling 

or alienating the plant before the Board ruled on the merits 

of the underlying unfair labor charges. It sought to 

maintain the status quo and thereby preserve the remedy 

of restoration should the Board decide to so order.

Following a hearing on July 24, 1997, the district court 

denied the petition request. Although the court found that 

there was reasonable cause to believe that Dorsey had 

committed the unfair labor charges, it also found that 

S 10(j) relief would not be "just and proper" because: (1) the 

request was untimely made, noting the fourteen-month 

delay in seeking S 10(j) relief; (2) the maintenance of the 

vacant plant was a cash drain on Dorsey, especially in light 

of the prior expenses of relocation; (3) the workers in 

Dorsey's Georgia and South Carolina plants could lose their 

jobs should restoration be ordered; (4) the vast majority of 

the former Northumberland workers had found new jobs; 

(5) the sale of the plant would bring new jobs to the region; 

and (6) the Board could order Dorsey to build a new plant 

and employ the Northumberland workers, if the plant were 

sold. 

II. 

A district court's determination whether to issue 

temporary injunctive relief under S 10(j) involves a two-fold 

inquiry: (1) whether there is reasonable cause to believe 

that an unfair labor practice has occurred; and (2) whether 

an injunction would be just and proper. See Pascarell v. 

Vibra Screw Inc., 904 F.2d 874, 877 (3d Cir. 1990) (citation 

omitted); Suburban Lines, 731 F.2d at 1078 (interim relief 

under S 10(j) may be granted without showing irreparable 

harm or a likelihood of success on the merits, the ordinary 

requisites of an injunction). Because Dorsey does not 

dispute the district court's finding that the Board has 

satisfied the "reasonable cause" inquiry, the only question 

is whether the Board demonstrated that the issuance of an 

injunction would be "just and proper." 

 5 
The standard to be applied by a district court in 

determining whether granting temporary relief pursuant to 

S 10(j) is just and proper should be informed by the policies 

underlying S 10(j). See Lenape Products, 781 F.2d at 1003; 

Suburban Lines, 731 F.2d at 1090-91. "Congress sought to 

ensure that the Board would be able to exercise effectively 

its ultimate remedial power." Lenape Products, 781 F.2d at 

1003. Section 10(j) "was designed to enable the Labor 

Board to vindicate its ultimate remedial power by affording 

limited interim relief in instances where the passage of time 

reasonably necessary to adjudicate the case on its merits 

convinced both the Board and the federal courts that the 

failure to grant such relief might dissipate the effective 

exercise of such power." Suburban Lines, 731 F.2d at 1091. 

Thus, the focus in a S 10(j) determination is on the public 

interest, Vibra Screw, 904 F.2d at 876, and"the unusual 

likelihood . . . of ultimate remedial failure" by the NLRB. 

Suburban Lines, 731 F.2d at 1091 n.26 (emphasis in 

original). "The public interest at stake is the promotion 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 and quotation marks omitted).

In evaluating whether to issue an injunction under the 

"just and proper" prong, a district court"should discuss 

and determine whether the failure to grant interim 

injunctive relief would be likely to prevent the Board, acting 

with reasonable expedition, from effectively exercising its 

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

1091-92. "[T]he critical determination is whether, absent an 

injunction, the Board's ability to facilitate peaceful 

management-labor negotiation will be impaired." Vibra 

Screw, 904 F.2d at 879. This requires an assessment of 

"the likelihood of harm to the bargaining process" absent 

an injunction. Eisenberg v. Wellington Hall Nursing Home, 

Inc., 651 F.2d 902, 907 (3d Cir. 1981). "Unless there are 

circumstances, like the size, intimacy and longevity of the 

bargaining unit, which indicate that the bargaining process 

will not be harmed, courts must be deferential to the 

Board's determination that the integrity of the process 

needs interim protection." Vibra Screw, 904 F.2d at 879 

n.7. The S 10(j) analysis must be guided by the particular 

 6 
facts in each case. See Eisenberg v. Hartz Mountain Corp., 

519 F.2d 138, 142 (3d Cir. 1975). 

The Board argues that the failure to issue the injunction 

in this case clearly impairs the "Board's ability to facilitate 

peaceful management-labor negotiation," Vibra Screw, 904 

F.2d at 879, because, absent an injunction, Dorsey could 

sell the plant before the Board rules upon the unfair labor 

charges. This would render the Board's ultimate remedial 

powers toothless. The ALJ has already determined that 

restoration of the plant is a proper remedy. Although 

Dorsey argues that restoration is not a proper remedy 

under these circumstances, but see Coronet Foods, Inc. v. 

NLRB, 981 F.2d 1284 (D.C. Cir. 1993) (court, per then 

Judge, now Justice, Ruth Bader Ginsburg, enforced Board 

order requiring employer to restore trucking department), 

we need not decide that issue now. Instead, this appeal 

concerns the district court's exercise of its discretion. It is 

evident to us that the district court's failure to grant 

interim injunctive relief to ensure the availability of the 

plant jeopardizes the Board's ability to effectively exercise 

its ultimate remedial powers. The alienation of the plant by 

Dorsey would eliminate that remedy entirely. Under the 

standards articulated in Suburban Lines, 731 F.2d at 1091- 

92, this risk is sufficient to satisfy the "just and proper" 

prong for injunctive relief. 

In addition, in denying injunctive relief, the district court 

relied upon its belief that the Board has the power to order 

Dorsey to build a new plant if the Board determined that 

restoration of the Northumberland plant was the proper 

remedy for the unfair labor charges. Dorsey cites no legal 

support, and significantly the Board argues it does not have 

such wide power. It is at least plausible that had the 

district court recognized that it was likely that a restoration 

remedy would be unavailable absent an injunction, the 

district court may have been persuaded to issue the interim 

relief. 

Another basis for the district court's opinion, that a vast 

majority of the workers from the Northumberland plant had 

found new jobs, is unsupported on this record. This

conclusion was taken from a newspaper article that itself 

speculates as to this figure. Dorsey's counsel conceded at 

 7 
oral argument that it neither presented nor has any

evidence of the number of its former employees who are no 

longer available. Even if the district court's conclusion were 

accurate, there is no information whether the new jobs and 

pay are comparable. In any event, the possible employment 

of the former employees does not mitigate the need for a 

S 10(j) injunction. 

Moreover, the district court's denial of relief emphasized 

the cash drain and financial burden of maintenance of the 

Northumberland plant, and notes the negative impact

caused by the relocation. This fails to take into account 

that the impact was of Dorsey's making. The Board's

counsel points to evidence that shows that the burden is 

minor for a company of Dorsey's income and assets. Also 

significant in that respect is that in this circuit a S 10(j) 

injunction is limited to six months when a matter is 

pending before the Board. See Hartz Mountain, 519 F.2d at 

144. 

Finally, although we recognize that the Board did not 

petition for a S 10(j) injunction as early as it might have, the 

delay should not be dispositive in determining whether to 

grant injunctive relief. The district court acknowledged that 

"delay alone is not grounds for denying an injunction," op. 

at 10, but it is unclear whether its concern over the delay 

influenced the court's rejection of the injunction. Dorsey 

moved quickly from its decision to move the operations in 

the fall of 1995, to the closure of the plant on December 29, 

1995. Even if the Board had not delayed until January 

1997 to file the S10(j) petition, it is unlikely that it would 

have been able to seek the injunction and obtain a hearing 

before the equipment had been transferred and the plant 

closed. As we noted in Vibra Screw, "The Board needs time 

to do a thorough investigation before it even requests the 

[S 10(j)] injunction." 904 F.2d at 881. See also Aguayo v. 

Tomco Carburetor Co., 853 F.2d 744, 750 (9th Cir. 1988) 

(delay is only significant if the harm has occurred and the 

parties cannot be returned to the status quo; the Board 

needs a reasonable period of time to investigate and 

deliberate before it decides to bring a section 10(j) action) 

overruled on other grounds, Miller v. California Pacific Med. 

Ctr., 19 F.3d 449, 457 (9th Cir. 1994). 

 8 
Although the protracted delay is not entirely justified, it 

is insufficient under these facts to overcome the primary 

consideration in evaluating the just and proper standard: 

that of safeguarding the Board's remedial powers. Using the 

Board's delay as the basis to deny the requested injunctive 

relief punishes the wronged employees for the Board's 

belated action, an unacceptable outcome. See Gottfried v. 

Mayco Plastics, 472 F. Supp. 1161, 1168 (E.D. Mich. 1979), 

aff 'd, 615 F.2d 1360 (6th Cir. 1980). Cf. NLRB v. J.H. 

Rutter-Rex Mfg. Co., 396 U.S. 258, 264-65 (1969) ("the 

Board is not required to place the consequences of its own 

delay, even if inordinate, upon wronged employees to the 

benefit of wrongdoing employers"). 

During the oral argument counsel for the Board advised 

this court that the issuance of a S 10(j) injunction 

invariably prompts the Board to review the ALJ decision on 

appeal because the Board is aware of the limited six-month 

duration of the injunction. See Hartz Mountain , 519 F.2d at 

144. Indeed, the Board has adopted a regulation requiring 

it to hear expeditiously and give priority to a complaint 

which is the subject of a S 10(j) injunction. See 29 C.F.R. 

S 102.94. 

III. 

For the reasons set forth, we will remand this case and 

direct the district court to order interim relief under S10(j).1 

_________________________________________________________________ 

1. Although we do not preclude Dorsey from raising on remand the 

appropriate starting date of the S 10(j) injunction, it is important to 

note 

that it never raised that issue in its brief. Our concurring colleague 

suggests that the Board has already obtained the relief it is seeking 

through the S 10(j) injunction. In fact, that has not occurred as the 

union and the former employees have not received the benefit of the 

Board's expedited consideration that occurs upon issuance of a S 10(j) 

injunction. 

 9 
GREENBERG, Circuit Judge, concurring: 

I join in the majority opinion but point out the following. 

The Board seeks an injunction to prevent Dorsey from 

selling or alienating the plant before the Board rules on the 

merits of the unfair labor charges. If the district court had 

entered the injunction on August 26, 1997, when it instead 

denied it, the injunction already would have expired under 

the six-month limitation rule we adopted in Eisenberg v. 

Hartz Mountain Corp., 519 F.2d 138, 144 (3d Cir. 1975). Of 

course, in that circumstance the Board would have been 

required to hear the unfair labor practices complaint before 

it expeditiously on a priority basis. 

In fact, it is undisputed that Dorsey shut down the plant 

on December 29, 1995; and while it has attempted to sell 

the facility, it has been unable to do so. Moreover, its 

inability to sell the plant has been attributable at least in 

part to the Board's intervention, as the Board notified a 

potential purchaser that if it acquired the plant it might 

incur successor liability for Dorsey's alleged unfair labor 

practices. The notification understandably led to the 

potential sale collapsing. In reality, therefore, the mere fact 

that the Board brought the unfair labor practices charge 

has acted as a lis pendens on the property. Thus, even 

without an injunction having been entered, the status quo 

with respect to the alienation of the plant has been 

maintained for a period almost five-fold that which in Hartz 

Mountain we held could be required. 

The majority indicates that its opinion does "not preclude 

Dorsey from raising on remand the appropriate starting 

date of the S 10(j) injunction." Slip op. at 9 n.1. I, of course, 

agree. I write separately merely to emphasize that as I 

understand the majority's opinion it does not preclude 

Dorsey from arguing that the starting date should be 

August 26, 1997, so that the injunction already has

expired. After all, the Board in a sense already has obtained 

the relief it is seeking in these proceedings. I, however, do 

not explore the point further as the parties have not briefed 

the starting date issue on this appeal. 

 10 
A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 11