NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MOUNTAIN COUNTRY FOOD STORE, INC.; Roswil, Inc. d/b/a Ramey Supermarkets, Respondents.
No. 90-1385.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 10, 1990. Decided April 23, 1991.
Request For Alteration of Opinion Denied June 3, 1991.
931 F.2d 21
Finally, Sorenson argues that the bank violated its duties of good faith and fair dealing by failing to advance construction draws to pay real estate taxes and mechanic‘s liens. Sorenson made this assertion in his affidavit filed in support of his motion to alter or amend judgment, expanding upon a minor argument that he had raised in opposition to the bank‘s motion for summary judgment. This sort of ad hoc assertion after summary judgment is prohibited by this circuit‘s decision in Wilson v. Westinghouse Electric Corp., 838 F.2d 286, 288-89 (8th Cir.1988) (Wilson). In Wilson, the plaintiff filed an affidavit in opposition to the defendant‘s motion for summary judgment, in which he expanded on his earlier testimony concerning his discharge and created an issue of material fact as to whether the statute of limitations had equitably tolled in his age discrimination suit. Id. at 288. This court held that this change in the plaintiff‘s theory was improper because a party could delay summary judgment by making revisions and no case would ever be proper for summary judgment. Id. at 289. In the present case, Sorenson expanded his earlier claim in a similar fashion in order to create an issue of material fact where none existed before. Therefore, Sorenson‘s third argument fails because it was an untimely revision of an earlier claim.
Accordingly, the district court‘s order granting summary judgment is affirmed. See 8th Cir.R. 47B.
Aileen A. Armstrong, Washington, D.C., for appellant.
Donald W. Jones, Springfield, Mo., for appellee.
FAGG, Circuit Judge.
The National Labor Relations Board (NLRB) petitions for enforcement of its order against Mountain Country Food Store, Inc. and Roswil, Inc. (the stores). We deny enforcement.
The parties do not dispute the controlling facts. In 1981, Teamsters Local Union No. 245 (the union) was the certified bargaining representative for the employees of Aurora Coca-Cola Bottling Company (Aurora Coke) located in Aurora, Missouri. In September 1981, the union began an economic strike against Aurora Coke. In support of its strike, the union engaged in peaceful consumer handbilling at retail outlets selling Aurora Coke‘s products, including the stores in this case. In keeping with the stores’ policies against on-premise solicitation or handbilling, the stores refused to allow the union to handbill on their sidewalks and parking lots. The union then attempted to handbill on public property near the entrances to the stores’ properties. This proved unsatisfactory because of automobile traffic, and the union ended its handbilling activities.
The union filed an unfair labor practices charge, contending the stores interfered with the union‘s right to engage in lawful strike activities in violation of section 8(a)(1) of the National Labor Relations Act,
Assuming the ALJ properly balanced the stores’ private property rights against the union‘s protected interest in handbilling, see NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112-14, 76 S.Ct. 679, 684-85, 100 L.Ed. 975 (1956), we nonetheless refuse to enforce the NLRB‘s order. Simply stated, the long-delayed NLRB order no longer addresses a meaningful controversy. The events in question occurred in 1981 and had long been forgotten until the NLRB resurrected the case over seven years later. In the interim, the union was decertified, one of the stores relocated, and the identity and number of Aurora Coke‘s employees likely changed. In short, the circumstances relied on by the ALJ to balance the parties’ competing interests no longer exist. We believe “the passage of time between [the stores‘] action[s] and the [B]oard‘s remedy has so changed the underlying situation ... that enforcement of the order now ... would mock reality.” Emhart Indus., Hartford Div. v. NLRB, 907 F.2d 372, 379-80 (2d Cir.1990). Thus, in the unlikely event another handbilling dispute should arise, the parties’ rights must be balanced anew based on contemporary—not historical—circumstances.
The stores argue “the entire basis for the [NLRB‘s] order ... has evaporated,” and it would be extremely unfair to enforce the order under the given circumstances. We agree. Any adverse effects caused by the stores’ unfair labor practices have long since dissipated, and it is unclear what protection or benefit Aurora Coke‘s employees would receive by enforcing the NLRB‘s order now. Texas Petrochemicals Corp. v. NLRB, 923 F.2d 398, 404 (5th Cir.1991). Indeed, enforcing the NLRB‘s order in this case would be nothing short of punitive and certainly not remedial. There is no reason to believe the stores will resume the unfair labor practice cited by the NLRB. See NLRB v. Greensboro News & Record, Inc., 843 F.2d 795, 798 (4th Cir.1988) (enforcement inappropriate when “there is no reasonable expectation that the wrong will be repeated in the future“). Furthermore, the NLRB‘s order—couched in terms requiring that the stores not prevent the union‘s representatives from handbilling about the union‘s dispute with Aurora Coke—is incapable of meaningful compliance or effective enforcement. The union no longer exists, no longer represents Aurora Coke‘s employees, and no longer carries any legal interest in the long-past handbilling dis-
Responsibility for the extraordinary delay in this case, and the significant change in circumstances, falls squarely on the NLRB‘s shoulders. During oral argument the court expressed concern about the delay, but the NLRB could offer no explanation for its sloth-like pace in issuing its order.
Judge Arnold [addressing counsel for the NLRB]: [O]ne thing about this really concerns me ... the ALJ‘s opinion [was] filed in 1982, [but] the Board d[id]n‘t decide the case until 1989. Can you tell us why?
Counsel for the NLRB: I must confess, Your Honor, that I‘m embarrassed by that myself. ... [A] deputy counsel of the Board ... had a mental block in deciding [this] case. ... I have no explanation for it and, frankly, I must confess it‘s inexcusable and unfortunate. ...
Judge Arnold: We agree with you.
If we were to ignore the effects of the NLRB‘s “inexcusable and unfortunate” delay in this case, we would be abandoning our supervisory responsibility to ensure “‘the reasonableness and fairness of Labor Board decisions.‘” Emhart, 907 F.2d at 379 (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951)). This we will not do. Other circuit courts of appeals have been quick to recognize their responsibility to deny enforcement of NLRB orders rendered pointless and obsolete by virtue of the NLRB‘s self-inflicted administrative delay. See, e.g., Texas Petrochemicals, 923 F.2d at 404 (four-year delay); Emhart, 907 F.2d at 379 (six-year delay); Greensboro, 843 F.2d at 798-99 (three-year delay); Continental Web Press, Inc. v. NLRB, 742 F.2d 1087, 1095 (7th Cir.1984) (two-year delay). Likewise, this court will not flinch at discharging its duty to ensure fairness.
Accordingly, enforcement is denied.
McMILLAN, Senior District Judge, dissenting:
I respectfully dissent.
Difficulty of enforcement and justified vexation at the NLRB should not prevent this court from trying to do right.
A ruling on the merits is of course long deferred, and relief is hard to provide. Nevertheless, the NLRB—and the court—have a responsibility to all the parties. The NLRB has, at last, met its responsibility. The court can legitimately condemn the NLRB‘s delay without wiping out or postponing the remedy that they have, at long last, directed.
There is no apparent reason to expect that a case-laden administrative agency will clean up its act if we deny enforcement of the order they have now produced.
I would join in censuring the NLRB‘s delay as roundly as this court chooses; but I would not refuse to decide the rights of the parties simply because the NLRB has been slow to act.
We should decide this case on its merits and leave the further policing or censure, if any, of the NLRB to another day.
Order
June 3, 1991
Before ARNOLD and FAGG, Circuit Judges, and MCMILLAN,** Senior District Judge.
The National Labor Relations Board (NLRB) has asked the court to change its opinion in this case, 931 F.2d 21, by deleting a passage containing dialogue between the court and counsel for the NLRB. Id. at 23.
The NLRB‘s request is surprising to say the least. The NLRB pointedly informs the court that “[b]y publicly memorializing [counsel‘s remarks] the [court] has exposed [counsel] to censure and ... [the NLRB does] not believe [the court] anticipated or desired this result.” The court resents the suggestion that unless the court capitulates to the NLRB‘s request, counsel‘s career is in jeopardy. The court believes counsel should be commended, not criticized, for answering frankly the question
The court has no good reason to think that counsel was acting other than in entire good faith. His statement, therefore, contrary to the NLRB‘s view, was not “a serious breach of his responsibility as counsel for the Board.” Indeed, counsel gave a superior oral argument to this court while zealously representing the NLRB. As the NLRB itself acknowledges, counsel “has over twenty years of experience with the government, and ... has a reputation for excellence in appellate advocacy.” Counsel deserves greater respect than he has received from the NLRB in this case. Rather than seeking a scapegoat to carry blame, the NLRB should examine its internal operations and find a solution for its delayed decision-making.
Accordingly, the NLRB‘s request for an alteration of the court‘s opinion is denied, and the NLRB is specifically cautioned not to penalize counsel for his honesty. If counsel is censured or disadvantaged in any way for his candor, the court reserves the right to take further appropriate action against those responsible.
It is so ordered.