N.L.R.B. v. P*I*E Nationwide, Inc

• Decision Date: 30 January 1990
• Docket Number: No. 88-2911,88-2911
• Citation: 133 L.R.R.M. (BNA) 2569,894 F.2d 887
• Parties: Page 887 894 F.2d 887 133 L.R.R.M. (BNA) 2569, 114 Lab.Cas. P 11,895 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. P*I*E NATIONWIDE, INC., Respondent. United States Court of Appeals, Seventh Circuit
• Court: U.S. Court of Appeals — Seventh Circuit

Page 887

894 F.2d 887

133 L.R.R.M. (BNA) 2569, 114 Lab.Cas. P 11,895

NATIONAL LABOR RELATIONS BOARD, Petitioner v P*I*E NATIONWIDE, INC., Respondent.

No. 88-2911.

United States Court of Appeals Seventh Circuit.

Argued Nov. 30, 1989.

Decided Jan. 30, 1990.

Aileen A. Armstrong, John D. Burgoyne (argued), N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., Joseph A. Szabo, Director, N.L.R.B., Milwaukee, Wis., for petitioner.

Peter R. Corbin (argued), John E. Duvall, Corbin & Dickinson, Jacksonville, Fla., John P. Jones, Clearwater, Fla., for respondent.

Before POSNER, COFFEY, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

The National Labor Relations Board has petitioned us to enforce its order; the employer resists on the ground that enforcement would be inequitable. To frame the issue we must sketch the system for the enforcement of unfair labor practice orders.

A remedial order issued by the Labor Board is not self-executing. The respondent can violate it with impunity until a court of appeals issues an order enforcing it. Olin Industries, Inc. v. NLRB, 72 F.Supp. 225, 229 (D.Mass.1947). Once the order is enforced, violations of it expose the violator to proceedings for contempt in the court of appeals. 29 U.S.C. Secs. 160(e), (f); NLRB v. Brooke Industries Inc., 867 F.2d 434, 435 (7th Cir.1989) (in chambers). Usually these are proceedings for civil contempt. Hoffman v. Beer Drivers & Salesmen's Local Union, 536 F.2d 1268, 1273 (9th Cir.1976); NLRB v. Reed & Prince Mfg. Co., 130 F.2d 765, 771 (1st Cir.1942). But there is no reason why they must always be of that character. 18 U.S.C. Sec. 401(3).

Suppose an employer fires one of its employees for engaging in concerted activity. The order that the Board will issue to remedy this unfair labor practice will have at least two parts. The first part will direct the employer to reinstate the employee with back pay, and to post notices of this in the workplace, normally for 60 days, NLRB Case Handling Manual, pt. 1, p 10132.1a (June 1989), to reassure the other workers that the Board is making efforts to protect their rights. The second part of the order will direct the employer to cease and desist from the kind of unlawful behavior that the Board has found--in our hypothetical case, retaliation against an employee for exercising his statutory right to engage in concerted activity. The company is to stop doing the unlawful practice and to refrain from repeating it in the future.

After the Board issues a remedial order, the employer has a period of time within which to petition for review of the order in a court of appeals. 29 U.S.C. Sec. 160(f). If such a petition is filed, it is the Board's practice to file a cross-petition for enforcement of its order under Sec. 160(e), and the cross-petition is routinely granted if the petition for review is denied, that is, if the court of appeals upholds the Board's order. If a petition for review is not filed, the case is referred to the Board's staff to work out the details of compliance. Most of the time they are worked out satisfactorily, the requisite notices are posted, and the employee is reinstated with back pay, rendering the first part of the order moot after the 60-day period of required notices has run. But the second part of the order, the cease and desist part, is not made moot by the employer's abandonment, which may be temporary, of the unlawful activity. NLRB v. Mexia Textile Mills, Inc., 339 U.S. 563, 567, 70 S.Ct. 826, 828, 94 L.Ed. 1067 (1950); NLRB v. Raytheon Co., 398 U.S. 25, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970); Chicago Teachers Union v. Hudson, 475 U.S. 292, 305 n. 14, 106 S.Ct. 1066, 1075 n. 14, 89 L.Ed.2d 232 (1986); 29 C.F.R. Sec. 101.13(b) (1989). Unless the employer is a repeat violator of the National Labor Relations Act, however, the Board's practice is not to seek judicial enforcement of its order if the employer complies with the first part. (The Board used to seek enforcement routinely--and was criticized for doing so. H.R.Rep. No. 245, 80th Cong., 1st Sess. 43 (1947).) As a result, in relatively few cases does the Board seek enforcement of its order other than by cross-motion when the respondent has petitioned for review; this is such a case, however.

In 1983, P*I*E Nationwide, Inc., a trucking concern, fired Patrick Clement, one of its drivers, after learning that another trucking company had previously reinstated him pursuant to a settlement of unfair labor practice charges that the Regional Director of the NLRB (a subordinate of the General Counsel, the independent prosecuting arm of the Board) had filed on Clement's behalf. Clement complained anew and the Regional Director filed unfair labor practice charges against P*I*E accusing it of having fired Clement in order to discourage employees from resorting to the Board's processes. Concluding that P*I*E had indeed committed an unfair labor practice in firing Clement, the Board on February 5, 1987, ordered the company to reinstate him, to notify the company's other employees of this, and to cease and desist both from the specific unfair labor practices found and from violating its employees' rights under the National Labor Relations Act "in any like or related manner" in the future. This is the order the Board now asks us to enforce--and not for the first time. Contrary to its usual practice--perhaps anticipating what was to come--the Board petitioned this court in March 1987 to enforce the order, which had been entered the month before. While the petition was pending, however, the company signed a stipulation with the Board which provided that (1) the company would reinstate Clement; (2) the company reserved the right to a hearing on the amount of back pay due him; (3) in all other respects the company waived its right under the judicial-review provisions of the National Labor Relations Act "to contest either the propriety of the Board's Order issued on February 5, 1987, or the findings of fact and conclusions of law underlying that Order." On the basis of this stipulation the Board asked us to withdraw the petition for enforcement "without prejudice," and we did so. The company did not ask us to make the withdrawal with prejudice, as it could have done. Fed.R.App.P. 1(a), 42(b). So the Board was free to refile.

The following April (1988), a hearing on the amount of back pay due Clement was held before one of the Board's administrative law judges, who awarded Clement almost $78,000 in back pay, plus some pension benefits. The company has appealed that decision to the Board. On June 18, P*I*E fired Clement again, and on August 5 the Board's Regional Director issued a complaint charging that P*I*E had again committed an unfair labor practice. In October an administrative law judge upheld the charge. The company's appeal from that decision is before the Board along with the company's appeal from the specification of back pay, mentioned above.

The filing of the complaint against P*I*E by the Regional Director on August 5 touched off two additional actions by the Board. First, on October 3, 1988, the Board filed in this court its second petition (the one before us now) to enforce the order of February 5, 1987. Second, the Board brought suit in federal district court for an injunction under section 10(j) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 160(j), directing the company to reinstate Clement and cease making retaliatory discharges. The district court issued the injunction but this court reversed because not all the requirements for such an injunction had been met. Szabo v. P*I*E Nationwide, Inc., 878 F.2d 207 (7th Cir.1989). Section 10(j) authorizes the issuance of an injunction before the Labor Board has adjudicated the unfair labor practice complaint, that is, a preliminary injunction. We ruled recently that traditional equity principles are applicable to suits under section 10(j). Kinney v. Pioneer Press, 881 F.2d 485 (7th Cir.1989). This implies, and Kinney expressly holds, id. at 494, that the Board must show irreparable harm in such a suit, for that is a traditional prerequisite to a preliminary injunction. This is not the focus of the Kinney opinion, and there is contrary authority: United Auto Workers v. NLRB, 449 F.2d 1046, 1051 (D.C.Cir.1971) (per curiam), for example, holds that section 10(j) does not require proof of irreparable harm. We need not worry the question further in this opinion, because it is largely, perhaps entirely, semantic. Cf. FTC v. Elders Grain, Inc., 868 F.2d 901, 903 (7th Cir.1989). Section 10(j) directs the court to grant such relief "as it deems just and proper," and it is not just or proper to enjoin a company in advance of trial if the injunction is unnecessary to ward off any harm to anybody. The legislative history of section 10(j) reveals--what is anyway obvious--that the purpose of the statute was to prevent substantial injury being done by unfair labor practices while Board proceedings were making their stately progress to conclusion. S.Rep. No. 105, 80th Cong., 1st Sess. 8, 27 (1947). No such injury was shown in Szabo v. P*I*E Nationwide, Inc. The Board failed to show that P*I*E's second termination of Clement was likely to discourage other workers from filing claims of retaliatory discharge--the only type of harm that would not be cured by the Board's eventual issuance of a remedial order.

Neither party bothered to cite Szabo v. P*I*E Nationwide, Inc. to us--a curious omission, but also a tacit acknowledgment that the standard for a section 10(j) injunction is more demanding than that governing a petition to enforce such an order under section 10(e), once the order is entered. Therefore the result of that case does not compel us to refuse enforcement of the Board's order.

In opposing judicial enforcement of the Board's order of February 5, 1987, the company does not argue that its compliance with the order's notice, reinstatement,...