Osthus v. Whitesell Corp.
79 Fed. R. Serv. 3d 651
8th Cir.2011Background
- Whitesell bought a Washington, Iowa facility in 2005, where production and maintenance employees were represented by Local 359 of the Glass, Molders, Pottery, Plastics and Allied Workers Union.
- The existing collective bargaining agreement was to expire June 12, 2006; negotiations began in May 2006.
- After eight bargaining sessions, Whitesell declared impasse and implemented its final offer; the Union filed unfair labor practice charges.
- The Director filed an administrative complaint and, with Board authorization, sought a § 10(j) injunction to enjoin alleged unfair labor practices during Board resolution; a temporary injunction required Whitesell to rescind terms and bargain in good faith.
- Bargaining continued unsuccessfully through 2007; the Board then had four members and one vacancy, creating a temporary delegation by the Board to the General Counsel in December 2007.
- In April 2009 Whitesell implemented its final offer; the Director filed three more complaints and, relying on the General Counsel’s authorization, petitioned the district court for another § 10(j) injunction, which the district court granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board could delegate §10(j) authority to the General Counsel. | Whitesell argues delegation to the General Counsel is impermissible. | Whitesell contends the delegation was invalid; the Board cannot delegate the §10(j) power. | Yes, the delegation is permissible under the statute. |
| Whether the delegation survived the Board’s loss of quorum. | Whitesell argues delegation ceases when Board loses quorum; New Process Steel supports this view. | The Board and General Counsel contend delegation survives, citing the Act’s structure. | Delegation survived the loss of quorum per majority view. |
| Whether the district court had subject matter jurisdiction to issue the §10(j) injunction. | If delegation is invalid or ineffective, court lacks jurisdiction. | Delegation valid and district court has jurisdiction. | District court lacked sufficient, specific findings for injunction and must remand for proper factual findings; order vacated. |
| Whether the §10(j) injunction was properly narrowed under the four-factor Dataphase test. | Injunction appropriately tailored to preserve remedial purposes. | Injunction was overbroad and improperly micro-managed bargaining; not sufficiently justified. | Injunction vacated and remanded for explicit four-factor analysis and more precise findings. |
Key Cases Cited
- New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010) (Supreme Court declined to endorse D.C. Circuit view on delegee's authority after loss of quorum; discusses Board delegation context)
- Overstreet v. El Paso Disposal, L.P., 625 F.3d 844 (5th Cir.2010) (upholds Board delegation of §10(j) power to General Counsel)
- Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C.Cir.2009) (board-delegatee authority terminated when delegating board loses quorum (Quorum principle))
- Evans v. Int'l Typographical Union, 76 F. Supp. 881 (S.D.Ind.1948) (early district ruling on delegating §10(j) powe r; discussed 'duties' vs 'powers' distinction)
- Muffley v. Spartan Mining Co., 570 F.3d 534 (4th Cir.2009) (debates prosecutorial vs adjudicative function in delegation; context for §10(j) delegation)
- NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112 (1987) (board/general counsel roles and independence; statutory scheme guidance)