*1 consistent with state’s possible, be tent Id. at 190-91.
management plan. NATIONAL LABOR RELATIONS BOARD, Petitioner, critically, the condi- Second, and more Cape May Greene imposed EPA goals directly related to were not RECORD, NEWS & GREENSBORO imposed The use restrictions FWPCA. Respondent. INC. protect designed to water there were not No. 87-3565. nonpoint pollution, but quality from source flooding, a concern which is not to reduce Appeals, United States Court finding EPA’s action to of the FWPCA. Fourth Circuit. arbitrary capricious, the Third Cir- Argued Jan. special emphasis on the fact placed cuit April Decided flood control was not factor was to consider the FWPCA.
authorized 186-87, 190 id. & n. 15.
See contrast, agen- the state Maryland’s Coastal
cy that administers Management specifically
Zone Plan has grant as consistent
proved these conditions Moreover, goals plan. of that directly
conditions are related to quality, goal improving water
FWPCA’s express EPA made an factual find- has finding to consider- which is entitled —a necessary they deference —that able prevent construction of the West Ocean
City facility leading to an overall de- quality. For these
cline in the area’s water
reasons, that EPA did not act we conclude
arbitrarily capriciously deciding upon
impose these conditions the West City grant.
Ocean
V above,
For the reasons set forth granting
judgment of the district court .
summary judgment for the defendants is affirmed. Shaw, Lindsay (Seyfarth, Ronald Alan AFFIRMED. brief), for re- Fairweather & Geraldson on
spondent. Young,
Christopher Warren N.L.R.B. Counsel, (Rosemary Collyer, Gen. John M. Counsel, Jr., Higgins, Deputy Rob- E. Gen. Counsel, Allen, Ai- ert E. Associate Gen. Armstrong, Deputy leen A. Associate Gen. Counsel, Williams, Supervisory L. Susan brief), petitioner. Atty. on POWELL, Before Associate Justice (retired), Court, United States *2 ERVIN, Patteson, for 38 pressman ent room. a designation; sitting by Circuit BUTZNER, Judge, years, and Senior Circuit in the union himself for had been Judge. go years. of Patteson had to to the those equipment times reel room four ERVIN, Judge: Circuit fourth malfunc- malfunctions. Inc., Record, The News & Greenesboro tion, appeared noticed to be Patteson what (“the newspaper”) adjudged guilty was newsprint. in cut a roll of a deliberate committing practices by the unfair labor machinery would halt the Such a cut involving incidents NLRB because of to bring production a standstill. Greenesboro, North Car- employees supervisor, on his Law- Patteson called 19, 1984, the September On plant. olina they met Emery, together with rence by discharging James ruled that Roberts on the Patteson fired Roberts. September news- Roberts 8(a)(1) (3) Later, sabotage. presi- the vice spot paper violated sections for amended, 158(a)(1), NLRA, Hendricks, as 29 U.S.C. up- operations, § Richard dent for adjudicated (3).1 to The was grievance after a meet- held the dismissal 8(a)(1) by issuing a have violated section Roberts and others. number Allen, warning threatening Jane to and dramatically. of malfunctions decreased unlawfully Ann interrogating Leigh by discharge ruled that this was reported Lovings. Board’s decision is by animus. motivated anti-union N.L.R.B. The Board now at 272 135.2 violations, occurring separate Wholly the court to enforce 1984 order. months Roberts’ dis- some three decline such an invitation. We Allen, sup- a union charge, involved Jane porter, advertising worked in the de- who I. right partment. her to She often exercised president has been James Roberts during her union business breaks discuss union, 319, since He is Local local during per- meals. was on close Allen pressman who employed journeyman as a supervisor, her terms with immediate sonal pressroom doing various moves around the profes- She also at ease Bobbie Cox. September jobs. On he was personally with sionally and Classified working in reel His person room. only Patteson, foreman, Manager Hal Clayton was in a differ- Greene.
1. 29 U.S.C. ployees teed in section 157 employment membership tion tion age membership PROVIDED, tenure of or such shall agreement tablished, maintained, labor agreement, employer— (a) § labor employees (1) 158. Unfair labor It thirtieth defined employment preclude to interfere organization is the any shall be practice) [******] employment in the exercise of discrimination §§ employment or other with a whichever That day 158(a)(1) provided in an this subsection as an statute of the United with, following or the unfair labor in nothing in this employer from labor require of this any or restrain, encourage effective date organization in representative of the labor assisted therein any as a condition regard (3) title; later, (i) if such term practice for an rights guaran- provide: or coerce em- beginning of organization: subchapter, on or making or discour- to hire or or condi- 159(a) (not of such States, unfair after ac- es- an reporter is incorrect. Note tion ployee has reasonable membership in a within fied initiation generally applicable to other employee on the such rescind eligible tion to make FURTHER, of such discrimination ing made, held he has reasonable reasons other than the title, unit covered that at least that the date of the decision membership as membership one provided in agreement, acquiring fees tender vote in That no year preceding the effective date authority (ii) such uniformly required as a appropriate unless grounds same labor such was denied an by or majority was not section employer shall of such agreement: retaining membership. periodic such grounds Board shall an following an election have voted to organization terms and conditions for employee failure of the em- collective-bargain- 159(e) agreement available members, labor believing or dues and the for given PROVIDED terminated justify any employees organiza- believing (A) for election condi- or certi- if he non- title (B) ents; 2) issuing employees Greene and Allen activities; participating protected asked leaving room and Greene union the break 3) yes. threatening said employees if she knew Roberts. She union with loss of Allen benefits; 4) discharging says employees sympa- that Greene commented Allen union, with, involved in the union and interfering to the Roberts thetic good coercing look for her to be seen restraining, would not fore- or *3 denies such union-based go him. Greene The union activities. order also affirma- statement. tively required company to reinstate benefits, pay full ex- Roberts with and p.m., July approximately 5:00 On record, punge post appro- his work position speak to left her and went to Allen priate notice. apologiz- said that Lovings. Allen she was having ing Lovings for her the offended reinstated; peace Roberts was there was day in a union Vice before discussion. for a time. part of the President Hendricks overheard During 1987 the turmoil rekindled. New Moore, Gary and informed conversation petitions alleg- were filed with the NLRB Lovings’ supervisor. Moore then ing more unfair labor the com- proached Lovings they if had asked pany. March the General Counsel union; discussing Lovings said been complaint against company issued a Advertising yes. Moore left without ado. (3), 8(a)(1), alleging violations of section met Spears and later Director Bobbie Cox were during her Allen and told not to solicit with issued to Roberts others. On They her solicitation company time. told com- the General Counsel issued another permissible. on her own time is The Board plaint arguing it company that single question Lovings ruled that the same sections of the Act violated interrogation, unlawful constituted an discharging employee, it violated meeting Spears with and Cox that 8(a)(5) by refusing bargain with warning Allen. an unlawful Allen was argues these the union. The that 28, 1982, Finally, on November Hal continuing judicial en- violations mandate Allen into office. Greene Greene called his September forcement of the 1984 order. Al- concerned about Allen’s attitude. agree. We cannot being having len said that she trouble II. psychologist for co-workers. her leaving her about the news- Greene asked argues is the order pressure paper if the increased. Greene 1) complied it has moot because: may problem that Allen’s attitude said 2) 3) order, reinstated re- by her associates. Greene also caused currently employed is at the because Allen Swearingen, em- Ross a former ferred to appeal company. did not ployee depressed. had become Swear- who hand- in 1984 it was Board’s decision discharged. the dis- ingen was later Now, down; simply complied. ed Swearingen said fired be- charge, he was later, years the Board comes to this discussion, of his union work. This cause so asking judicial of its order for sanction NLRB, disguised argues thinly was a power contempt can be added Allen to tone her union threat down weapons. The quiver of enforcement activities. responds compliance moot the claim large part, adopted AU Board order does make which and that further violations Scully’s order December justify judicial en- newspaper occurred which and desist required to cease find repris- of the order. Rather than threatening moot,3 exercises associating adher- that the order this court als union with known faith, good bargain employers’ ruled refusals States Court has The United moot compliance with an NLRB order will not repeatedly possibility continu- that where the Mills, exist, e.g. See NLRB v. Mexia Textile usually context a claim. violations in de needed. equitable supervisory powers necessary determination is requested cognizable danger that there exists some nying judicial enforcement. violation, something recurrent more than appeals When the NLRB asks “a court of possibility order, keep mere which serves to appealing the Board’s it is to enforce the case at 633. This alive.” 345 U.S. equitable powers and is sub to the court’s showing some, least, threshold was never made ject of the traditional case. requests equitable relief.” defenses to Press, NLRB, Inc. v. Continental Web pertaining The Board’s order to the 1982 (7th Cir.1984). This court September was entered on role, can, supervisory decline to en in its 1984; recently the Board has waited until sought force a Board order the action appear this court to ask that we unnecessary or futile. the order is judicial imprimatur bestow our on the or- Plastics, Maywood Plant Grede der. The Board has offered no reason for (D.C.Cir.1980). Cagle’s See also delay. delay If the attributable *4 NLRB, 943, (5th F.2d 951
Inc. v.
588
Cir. whole,
significant part
employ-
or in
to the
Brockway
Motor Trucks v.
er, we would enforce the order nonetheless
NLRB,
720,
(3rd Cir.1978).
740
582 F.2d
encourage delaying
so as not to
tactics.
company challenged
Here the
the ALJ find-
deny
constrained to
enforcement
We are
ings
by
and decided to abide
the Board’s
unnecessary
it is
of this order because
both
ruling.
only
The Board has
itself to blame
First,
we refuse to enforce
obsolete.
delay.
for this
the 1984order because the more than three
year delay
the NLRB
taken
Further,
persons
the
involved the com-
court,
tioning this
see Continental Web
different,
plaints
wholly
from 1982 are
ex-
1095,
Press,
widespread
742 F.2d at
cept
from those involved the
changes
plant
personnel
have made
complaints.
complaints
1987
The 1987
al-
unnecessary.
In
the 1984 order
United
lege wholly
injuries
different
than were
Co.,
629,
345
73
v.
Grant
States W.T.
found to exist
the 1982 order. The 1987
(1953),
894, L.Ed. 1303
the
S.Ct.
97
United complaint argues
the
was
explained that al-
States
Court
restricting
employees;
the movement of
though
sought
of conduct
discontinuance
complaint
the 1984
and order never men-
enjoined
usually
pre-
be
will not
suffice to
Also,
tion such
activities.5
1987 com-
relief,
injunctive
inappro-
relief
vent
such
is
plaint alleges
wrongful
failure to bar-
priate
union;
can
gain
the defendant
demonstrate
men-
this
never
expectation
that there is no reasonable
tioned in the 1984order. These differences
wrong
repeated in the
against using
allega-
will be
future.4 militate
the recent
more,
party seeking
injunc-
justification
What is
tions as
to enforce a three-
satisfy
year-old
allega-
the court that relief is
order.
tion “must
Without the 1987
567,
826, 828,
563,
orders,
70
94 L.Ed.
dle
339 U.S.
enforcement NLRB
and the Court
Co.,
Raytheon
1067
v.
398 U.S.
has cited W.T. Grant in
cases
later
where en-
1547, 1548,
25, 27,
(1970).
90 S.Ct.
799 is a showing that there unenforceable or the time tions, senseless is no there Delay, sought.”) order. 1984 enforcement need to enforce the new thrust of wholly coupled with Although we refuse enforce the personnel, new involving new NLRB order from we do so without un- 1984 order renders enforcement prejudice Board to commence and Towing, necessary. NLRB v. Jamaica pursue proceedings additional should (2d Cir.1979); Inc., F.2d open possibili- to do so. seek We leave Press, NLRB, Inc. v. Web Continental ty seeking judicial of the Board enforce- Cir.1984); and (7th resulting order from the 1987 ment Inc., Corp. Rohr Marion But allegations. as for order Cir.1983). (2d DENIED. ENFORCEMENT Second, to enforce the 1984 we refuse argu- At is obsolete. oral order because BUTZNER, Judge, Senior Circuit ment, explained that counsel dissenting: judicial enforcement of the 1984 absolutely January Regional no effect on the Di- would response following to the alleged 1987 violations. rector wrote the letter to the “Suppose question panel, from the we were Company: News Greensboro order, what grant enforcement of this News], Respondent hav- [Greensboro position impact your what would be ing satisfactorily complied the af- grant of would have on enforcement requirements of the firmative Order [en- appeal *5 pending ... ? Counsel for this in tered above-numbered 1984] “None, honor, replied your none.” Board cases, undersigned having and the deter- then, the Ultimately, if this court enforces Respondent compli- that is also in mined order, nothing have 1984 Board will negative provisions the ance with of the charges currently changed. The Board has Order, the in these matters are files against company al- pending the for its closed, hereby and will continued leged unfair which occurred present so long closed cases as the status rubber-stamping the judicially 1987 and compliance continues. of findings prove order will not or 1984 In accordance with the assurances ex- allegations, disprove the recent nor will letter, pressed in the the NLRB did not contempt seek sanc- enable the Board to compliance to enforce its order while seek company for the the 1987 continued. point At allegations. some the however, compliance, Following its initial required process start the should be company engaged conduct that the anew; de- complaint, file a obtain an AU com- caused the General Counsel issue termination, itself, case then review the 1987, 21, plaints on March timely petition this in a manner. court complaint alleges the The first that case, completed first this 8(a)(1), (3), (4) company violated section Now, process. steps and ended the three by issuing of later, years the Board seeks over employee who is involved the same though such reopen the 1984 order even us, presently of his case significant will no effect. reopening have cooperated he union activities and because best, inefficient, maneuvers are at Such complaint the Board. The worst, NLRB v. Globe and at useless. charges company that restricted Services, Inc., 548 Security of because of movements its (3rd Cir.1977) (enforcement of orders 1117 com- their union activities. second rights no which have effect on the plaint alleges company violated that useless.”) and parties “vain are 8(a)(3) Plastics, of the Act dis- section Maywood 628 Plant Grede charging employee because of his union (D.C.Cir.1980) (“It 7 wise is neither 8(a)(5) (1) by re- petition this activities proper for nor the Board fusing bargain. The of both to enforce become an order which has 800 moot_” Mexia, does not conduct that 339 U.S. at
complaints describe and desist order cease comply with the in 1984.
entered deferral, policy exempli- The Board’s Regional fied letter by the Director’s Counsel issued the General advantages has January obvious sought en- the Board complaint, first unions, employees, for employers, and the order. The of its 1984 forcement disapprove I am loathe to Board. In its case is moot. that responded denying per- deferred enforcement. issue, parties which the framed the brief it ception policy its ineffective that this addressed, terms: in these may prompt circuit the Board to seek en- La- National enforcement Whether regardless compliance Board’s order should be Relations bor expense inconvenience and attendant underlying con- as the issues denied imposes. litigation troversy are now moot. 10(e) Act, Section U.S.C. contend, my nor in does 160(e), which the Board to authorizes § it, if the case moot could is not opinion seek enforcement its orders and confers on prevail this issue. nevertheless it should jurisdiction appeals, on the courts of con- sound'precedent The Board relied provision no statute of or tains limitations petition for enforcement. support not, certainly I laches. would not in Mills, Inc., Textile v. Mexia presented by the circumstances 567-68, 828-29, engraft the Act. these defenses on In- (1950), the Court said: L.Ed. 10(e) stead, I would adhere to section from the plain think it cases We consider the substance of the Board’s compliance with employer’s an order company’s tion and the other defenses. not render Board does the cause moot, depriving opportu- Board of enforcement from an
nity to secure court_ A Board im- propriate obligation; continuing
poses
*6
resumption
have the
is entitled to
barred
an en-
practice
unfair
decree....
Act does
&
ACUMENICS RESEARCH
TECHNOL-
play
require the Board to
hide-and-seek
OGY, Plaintiff-Appellant,
practic-
unfair
guilty
those
labor
v.
es.
UNITED STATES DEPARTMENT OF
in Mexia differ
from
those
The facts
JUSTICE, Defendant-Appellee.
principles
but the
the Court
instant
narrowly
are not
confined
announced
No. 87-1650.
This is illustrated
patterns.
factual
similar
Appeals,
States Court of
United
Co.,
Raytheon
U.S.
Fourth Circuit.
(1970).
1548,
To be may deny the case enforcement when
is moot. 398
(dictum); see NLRB v. Fourco Glass
Co., Cir.1981). (4th But this Compliance
case is not moot. cause
Board’s not render the “does