Marlin O. OSTHUS, Regional Director of the Eighteenth Region of the National Labor Relations Board; National Labor Relations Board, Plaintiffs-Appellees, v. WHITESELL CORPORATION, Defendant-Appellant.
No. 09-3209.
United States Court of Appeals, Eighth Circuit.
Submitted: April 13, 2010. Filed: April 22, 2011.
639 F.3d 841
Before RILEY, Chief Judge, and COLLOTON and BENTON, Circuit Judges.
Section 706(a) states in relevant part: “The debtor may convert a case under [Chapter 7] to a case under [C]hapter 11, 12, or 13 of this title at any time, if the case has not been converted” from any of those three Chapters. This section, thus, grants a debtor a limited right to have his bankruptcy proceeding converted to another chapter. Marrama, 549 U.S. at 373-74, 127 S.Ct. 1105. In contrast,
Accordingly, we affirm the judgments of the district court and the bankruptcy court.
Charles P. Roberts, III, argued, Win-
BENTON, Circuit Judge.
The Regional Director of the Eighteenth Region of the National Labor Relations Board (respectively, “Director” and “Board“) requested an injunction under
I.
In 2005, Whitesell purchased a manufacturing facility in Washington, Iowa. Its production and maintenance employees were represented by the Glass, Molders, Pottery, Plastics and Allied Workers International Union Local 359. Whitesell agreed to abide by the collective bargaining agreement scheduled to expire on June 12, 2006.
In May 2006, Whitesell and the Union began negotiations. After eight bargaining sessions, Whitesell declared an impasse and unilaterally implemented its final offer. The Union filed unfair labor practice charges. The Director filed an administrative complaint charging that Whitesell had prematurely declared impasse, in violation of
The parties continued bargaining, unsuccessfully, throughout 2007. As the end of 2007 approached, the Board had four members and one vacancy. The recess appointments of two members were set to expire at the end of the year, leaving the Board with only two members—one short of a quorum. See
In April 2009, after further bargaining, Whitesell implemented its final offer. The Director filed three more administrative complaints, alleging bad faith bargaining in violation of
II.
Whitesell disputes the district court‘s subject matter jurisdiction, asserting that the General Counsel may not sue under
First, Whitesell argues that the Board may not delegate
Second, Whitesell contends that the delegation lapsed when the Board lost its quorum. The District of Columbia Circuit took this view. Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C.Cir.2009), cert. denied, — U.S. —, 130 S.Ct. 3498, 3499, 177 L.Ed.2d 1089 (2010). But in a separate case, the Supreme Court declined to endorse the D.C. Circuit‘s position. New Process Steel, 130 S.Ct. at 2642 n. 4. Later, the Fifth Circuit held that “the General Counsel retained the
The district court had subject matter jurisdiction.
III.
Turning to the merits, this court “review[s] the District Court‘s material factual findings for clear error, its legal conclusions de novo, and the court‘s equitable judgment—the ultimate decision to grant the injunction—for an abuse of discretion.” Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, 689-90 (8th Cir.2003) (citation omitted). In this circuit,
In granting or refusing an injunction, “the judge need only make brief, definite, pertinent findings and conclusions upon the contested matters; there is no necessity for over-elaboration of detail or particularization of facts.” Fed.R.Civ.P. 52 advisory committee‘s note (1946) (citations omitted). “Merely indicating the factual basis for the ultimate conclusion will suffice in most cases.” SquirtCo v. Seven-Up Co., 628 F.2d 1086, 1092 (8th Cir.1980), citing United States v. Birnbach, 400 F.2d 378, 382 (8th Cir.1968).
Here, however, minimal requirements were not met. The district court‘s brief document, labeled “Findings of Fact and Conclusions of Law Supporting Temporary Injunction,” presents the alleged unfair labor practices cryptically. See Appendix A to this opinion. It does not specially find facts or explain how the Director meets the requirements for an injunction. “[T]he court must find the facts specially....”
This court vacates the district court‘s order granting the
*
*
*
*
*
*
The order of the district court is vacated and the case remanded for further proceedings consistent with this opinion.
COLLOTON, Circuit Judge, concurring.
As the opinion of the court observes, federal courts have ruled consistently for more than sixty years that the National Labor Relations Board may delegate its authority to seek an injunction under Section 10(j) of the Labor Management Relations Act (“LMRA“),
The Board first delegated its Section 10(j) authority in 1947. The Board assigned this authority to its regional directors, pursuant to the Board‘s rulemaking authority, see
When evaluating an agency‘s interpretation of a statute, the Supreme Court has instructed that “the interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time” all are factors that weigh in favor of deferring to the agency‘s interpretation under the doctrine of Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Barnhart v. Walton, 535 U.S. 212, 222, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002). In light of these considerations, the Board‘s interpretation of
The textual argument advanced by Whitesell does not establish that the Board‘s interpretation is unreasonable. To be sure, there may be a distinction between the terms “power” and “duty” when applied to a single officer or entity, on the view that “power” is the privilege to take an action and “duty” is an obligation to take an action. See Black‘s Law Dictionary 1288 (9th ed. 2009) (defining “power” as “[t]he legal right or authorization to act or not act“); id. at 580 (defining “duty” as a “legal obligation“); cf. U.S. Const. art. II, § 1, cl. 6 (referring to the “Powers and Duties” of the President); id. amend. XXV, §§ 3, 4 (same). But “duty” also means, inter alia, “conduct due ... superiors,” Webster‘s Third New International Dictionary 705 (2002), and it is not logical-
The text of the LMRA itself indicates that Congress contemplated that the Board could delegate its statutory “power” to the General Counsel. The statute provides that the General Counsel “shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law.”
Other provisions of the United States Code show that Congress has used the term “duty” to refer to a delegated “power.” In
The statutory text thus does not forbid the Board to delegate its power to seek injunctions under Section 10(j). The Board‘s interpretation of the statute is not otherwise unreasonable. Some courts have reasoned that the Board may not delegate its “adjudicatory” power to the General Counsel, see Evans, 76 F.Supp. at 889, but insofar as the distinction between “prosecutorial” and “adjudicatory” power is a line of demarcation, the Board reason-
With these additional views, I join the opinion of the court.
RILEY, Chief Judge, concurring in part and dissenting in part.
I. INJUNCTION
I agree the district court‘s factual findings and conclusions of law are insufficiently specific to support its section 10(j) injunction. See
The majority correctly requires the district court on remand to “specially make factual findings, detailing specific actions in the bargaining process and the facts underlying each element of the four-factor injunction test.” Ante at 845. The district court‘s section 10(j) injunction was too broad for several reasons. First, the district court micro-managed the collective bargaining process despite our prior admonition that a section 10(j) injunction is “necessary either to preserve the status quo or prevent frustration of the basic remedial purposes of the Act.” Sharp, 172 F.3d at 1039 (quoting 3M, 385 F.2d at 270) (internal quotation marks omitted). See also e360 Insight v. Spamhaus Project, 500 F.3d 594, 604-05 (7th Cir.2007) (holding a district court abused its discretion in issuing an injunction, because the injunction was not narrowly tailored). For example, what irreparable harm would result were the section 10(j) injunction not read aloud “in the presence of all Unit employees” by Whitesell‘s chief operating officer and human resources director, “or by a [NLRB] agent in the presence of one of those management officials,” as the district court ordered. See Sharp, 172 F.3d at 1039 (characterizing “the question of irreparable injury” as a “relatively high hurdle” upon which the district court‘s “inquiry should focus initially“). As another example, the district court‘s catch-all order to Whitesell to refrain from “[i]n any like or related manner interfering with, restraining, or coercing any of its employees in the exercise of their right guaranteed under section 7 of the Act” is an impermissible obey-the-law provision. See, e.g., Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1531-32 (11th Cir.1996) (vacating “obey the law” provision in injunction); Louis W. Epstein Family P‘ship v. Kmart Corp., 13 F.3d 762, 771-72 (3d Cir.1994) (similar). The district court‘s section 10(j) injunction also stems in part from allegations upon which the government is unlikely to prevail. See Sharp, 172 F.3d at 1039 (requiring the district court to “consider likelihood of success on the merits“). After the district court entered its section 10(j) injunction, which granted the General Counsel all the relief he sought, the administrative law judge (ALJ) in the underlying proceedings examined the same record and found the government had not proven many allegations in its complaints. See Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 286-87 (7th Cir.2001) (judging the propriety of section 10(j) injunction in the light of an ALJ‘s subsequent report and recommendation); Seeler v. Trading Port, Inc., 517 F.2d 33, 37 n. 7 (2d Cir.1975) (similar).
II. DELEGATION OF AUTHORITY
Though I agree with the majority‘s view the district court‘s section 10(j) injunction is fatally flawed, I write separately to express my disagreement with the majority‘s conclusion that “[t]he Board may delegate § 10(j) authority to the General Counsel.” Ante at 844. The majority ignores the statutory language at issue and offers no analysis for its decision in this regard, except to point out that a handful of other courts over the years have upheld the Board‘s delegations to the General Counsel. Id. at 844. The majority characterizes these courts’ opinions as constituting a “long-established interpretation” of the Act. Id. at 844. To the contrary, the Board‘s eleventh-hour delegation of its section 10(j) power to the General Counsel was an integral part of a recently discredited attempt by the Board “to keep its doors open despite vacancies.” New Process Steel, L.P. v. NLRB, — U.S. —, 130 S.Ct. 2635, 2638, 2644-45, 177 L.Ed.2d 162 (2010) (explaining that, faced with an impending loss of a quorum, the Board “decided to take action in an effort to preserve the Board‘s authority to function,” delegating (1) to the General Counsel certain litigation powers “that would normally require case-by-case approval of the Board,” and (2) “to ... a three-member group, all of the Board‘s powers“).
We have an independent obligation to consider the important issue of statutory construction before us. See Furrer v. Brown, 62 F.3d 1092, 1101 (8th Cir.1995). “As in all such cases, we [must] begin by analyzing the statutory language, ‘assum[ing] that the ordinary meaning of that language accurately expresses the legislative purpose.‘” Hardt v. Reliance Std. Life Ins. Co., — U.S. —, 130 S.Ct. 2149, 2156, 176 L.Ed.2d 998 (2010) (quoting Gross v. FBL Fin. Servs., Inc., — U.S. —, 129 S.Ct. 2343, 2350, 174 L.Ed.2d 119 (2009)). “The Supreme Court has ‘stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.‘” United States v. I.L., 614 F.3d 817, 820 (8th Cir. 2010) (quoting Conn. Nat‘l Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)). We are obliged to “look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” Id. (quoting Sullivan v. Stroop, 496 U.S. 478, 482, 110 S.Ct. 2499, 110 L.Ed.2d 438 (1990)).
Section 10(j) provides, “The Board shall have power, upon issuance of a complaint ... charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court ... for appropriate temporary relief or restraining order.”
Congress specifically authorized the Board to delegate its statutory powers in
Congress gave the Board power, and the General Counsel acting on behalf of the Board the authority, to issue complaints alleging unfair labor practices:
Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint.
[The General Counsel] shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law.
Congress specified the powers held by the Board, and the authority and duties of the General Counsel. Congress also specified when the Board may delegate certain powers. Congress plainly did not provide for the Board to delegate its section 10(j) injunctive power to the General Counsel.
The Director argues section 3(d)‘s “other duties as the Board may prescribe” clause allows the Board to delegate its section 10(j) power to the General Counsel. See
Where Congress wanted to give the General Counsel, through the regional directors, the authority to seek injunctive relief in the district court, it did so expressly. A companion section,
As discussed in Part I above, ”
Instead of grappling with the relevant statutory language, the majority stresses
In Evans v. Int‘l Typographical Union, 76 F.Supp. 881, 888-89 (S.D.Ind.1948), the district court relied on the “such other duties as the Board may prescribe” language of section 3(d) in concluding the Board may delegate to the General Counsel “functions other than those specifically committed to him by statute.” While I agree the “other duties” clause would be “superfluous” if it only allowed the Board to delegate functions the General Counsel already may perform, that does not lead to the conclusion that “other duties” includes the “power” to petition the district court under
The court in Evans also concluded that the power to seek injunctive relief under
Finally, the Evans court stated the Board could not “properly delegate its functions of a judicial nature,” because that would undermine “the purpose and policy of Congress to separate the judicial functions of the Board from any prosecutive or investigative function.” Evans, 76 F.Supp. at 889. The court then reasoned that, because seeking section 10(j) relief is more prosecutorial than judicial, the Board‘s delegation of that power to the General Counsel would not upset any separation of powers within the agency. Id. Courts following the Evans decision generally adopt this part of its holding without analysis. See, e.g., Madden v. Int‘l Union, United Mine Workers of Am., 79 F.Supp. 616, 617 (D.D.C.1948) (adopting Evans without discussion); Penello v. Int‘l Union, United Mine Workers of Am., 88 F.Supp. 935, 937 (D.D.C.1950) (similar); Glasser v. Heartland-Univ. of Livonia, Mich., LLC, 632 F.Supp.2d 659, 662 (E.D.Mich.2009) (similar).
In Muffley v. Spartan Mining Co., 570 F.3d 534 (4th Cir.2009), for example, the employer “equat[ed] ‘duties’ with prosecutorial functions and ‘power’ with adjudicative functions, and then relie[d] on the general rule that although the Board may delegate prosecutorial functions to the General Counsel, it may not assign away its core adjudicative functions.” Muffley, 570 F.3d at 540. The Fourth Circuit stated: “The central question, then, is whether the ability to seek § 10(j) relief is prosecutorial or adjudicative in nature.” Id. The court concluded that seeking
As Whitesell suggests, the “central question is whether Congress authorized the Board to delegate its powers under
Section 10(j) was enacted as part of the
The Director also argues that Congress expressed its intent to allow
The Board and General Counsel are creatures of statute, and ours is a nation of laws not bureaucrats. Because Congress gave
III. LOSS OF QUORUM
Even if the Board could lawfully delegate its
I respectfully disagree with the majority‘s choice of sides in the circuit split and would join the D.C. Circuit‘s decision in Laurel Baye. By its terms, New Process Steel “does not address” whether the Board‘s loss of a quorum precludes the General Counsel from seeking a section 10(j) injunction if a prior delegation by the Board is otherwise valid. New Process Steel, 130 S.Ct. at 2642 n. 4. The mere fact the Supreme Court declined to endorse the D.C. Circuit‘s view that “[t]he delegee group‘s delegated power to act... ceases when the Board‘s membership dips below the Board quorum of three members,” id., is immaterial. Cf. Hopfmann v. Connolly, 471 U.S. 459, 460-61, 105 S.Ct. 2106, 85 L.Ed.2d 469 (1985) (per curiam) (explaining that questions the Supreme Court does not decide cannot be precedential). And the general maxim that “the General Counsel ... should be independent of the Board‘s supervision and review” does not compel the majority‘s conclusion that a delegated power survives the delegator‘s loss of a quorum.
The Fifth Circuit‘s conclusion that “[t]he fact that Board membership subsequently dipped below a quorum does not retroactively invalidate the Board‘s prior delegation,” El Paso Disposal, 625 F.3d at 853, overstates the matter. The question is not whether the loss of a quorum, in some metaphysical sense, “retroactively invalidate[s]” the prior delegation; the issue is whether the legal effect of the prior delegation terminates at the moment the Board loses its lawful power to act.
When the issue is properly framed, the Fifth Circuit‘s conclusion is inconsistent with well-settled principles of agency law. As the D.C. Circuit explained in Laurel Baye,
an agent‘s delegated authority terminates when the powers belonging to the entity that bestowed the authority are suspended. Restatement (Third) of Agency § 3.07(4) (2006). An agent‘s delegated authority is also deemed to cease upon the resignation or termination of the delegating authority. 2 William Meade Fletcher, Fletcher Cyclopedia of the Law of Corporations § 504 (2008); see Emerson v. Fisher, 246 F. 642, 648 (1st Cir.1918) (holding that a corporate treasurer‘s resignation terminated any authority delegated by the treasurer to other individuals). Moreover, as Fletcher notes, a delegating board of directors‘s powers are suspended whenever the board‘s membership falls below a quorum. See 2 Fletcher Cyclopedia of the Law of Corporations § 421 (“If there are fewer than the minimum number of directors required by statute, [the remaining directors] cannot act as a board.“). In the context of a board-like entity, a delegee‘s
authority therefore ceases the moment that vacancies or disqualifications on the board reduce the board‘s membership below a quorum. It must be remembered that the delegee committee does not act on its own behalf.
Laurel Baye, 564 F.3d at 473. See also Long v. Thayer, 150 U.S. 520, 522, 14 S.Ct. 189, 37 L.Ed. 1167 (1893) (recognizing the principle that an agent‘s power ceases upon the principal‘s death); Galt v. Galloway, 29 U.S. (4 Pet.) 332, 344, 7 L.Ed. 876 (1830) (same); Hunt v. Rousmanier‘s Adm‘rs, 21 U.S. (8 Wheat.) 174, 201-03, 5 L.Ed. 589 (1823) (Marshall, C.J.) (similar). The General Counsel, as delegatee, lost its power to petition the district court for a section 10(j) injunction the moment the Board, the delegator, lost its quorum.
Because the General Counsel lacked power to petition the district court for the section 10(j) injunction once the Board lost its quorum, the district court‘s injunction must be vacated. Contravening the spirit, if not the letter, of New Process Steel, 130 S.Ct. at 2645, the majority incorrectly permits the “Board to create a tail that would not only wag the dog, but would continue to wag after the dog died.”
IV. CONCLUSION
I concur in part and dissent in part. I agree the district court‘s factual findings and conclusions of law are insufficiently specific to support its section 10(j) injunction. I disagree that the General Counsel possessed the power to petition the district court for a section 10(j) injunction. The Board‘s creative attempt to expand its power through the General Counsel should be rejected. See New Process Steel, 130 S.Ct. at 2638.
APPENDIX A
FINDINGS OF FACT AND CONCLUSIONS OF LAW SUPPORTING TEMPORARY INJUNCTION
On August 5, 2009, the court received the Administrative Record, stipulated by the parties, and oral argument on the Petitioner NLRB‘s motion for injunctive relief, resisted by Respondent Whitesell Corporation (Whitesell). The NLRB seeks an order requiring Whitesell pursuant to
About two and one-half years ago, this court after a hearing enjoined Whitesell from engaging in the unfair labor practices that were heard by Administrative Law Judge (ALJ) Bruce D. Rosenstein.1
Now before the court is the record made before ALJ Paul Bogas in Des Moines on June 1-4, 2009. Three complaints were consolidated for hearing, but several other complaints asserted by the union did not survive the Regional Director‘s scrutiny. Based on the record before me and the oral and written arguments of counsel, the court now concludes that the evidence proves Whitesell has engaged in acts and conduct that violates section 8(a)(1) and (5) of the Act; this affects commerce; and Whitesell will likely repeat this conduct unless it is enjoined. This is an extraordinary case where the delay inherent in completing the adjudicatory process will frustrate the NLRB‘s ability to remedy Whitesell‘s unfair labor practices. See Sharp v. Parents in Community Action, Inc., 172 F.3d 1034, 1037–39 (8th Cir.1999).
The court finds Whitesell prematurely declared an impasse in negotiations, en-
Whitesell‘s plea that adverse market conditions and loss of a major customer drove its actions is not credible. Whitesell‘s accusations about union representatives’ bad faith bargaining are also not supported in this large record concerning the more recent Whitesell conduct during and after bargaining sessions that have adversely affected the employees and the union.
Applying the four factor test articulated in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981), the court concludes Whitesell‘s employees and their union will sustain irreparable harm if no injunction issues; Whitesell will sustain no harm if enjoined to cease its unfair labor practices; the public interest will be served by enjoining the wrongful conduct; and the union and employees are likely to prevail once the adjudicatory processes are completed. Equities entirely favor granting the Petitioner‘s request for immediate injunctive relief.
Therefore the court now enters its ORDER GRANTING INJUNCTION, filed herewith.
IT IS SO ORDERED.
Dated this 11th day of September, 2009.
APPENDIX B
James River Flood Control Ass‘n et al. v. Watt et al.
Civil No. 81-1012 (D.S.D. May 18, 1982)
ORDER
Upon all the evidence presented at trial, the Court finds
(1) that there is a very substantial question of law present in this case, and a substantial likelihood of success on the merits on both of plaintiffs’ causes of action;
(2) that there is a substantial probability that if the challenged project is allowed to go forward, plaintiffs’ present interests in the proper compliance by defendants with the provisions of the National Environmental Policy Act (NEPA) will be irreparably harmed by construction of a project which is likely in violation of NEPA;
(3) that the public interest will also be severely harmed if construction of the challenged project proceeds in spite of defendants’ likely violations of NEPA and other federal statutes in that any funds spent by defendants on the prosecution of an illegal project will be irretrievably lost;
(4) that in view of the probability of harm to plaintiffs’ interests and the public interest, any injury accruing to defendants by the enjoining of the project during the pendency of this case is outweighed by the probability of harm to the plaintiffs and to the public interest, it is therefore
ORDERED that defendants are hereby enjoined from any acquisition of land and construction in the West Oakes area, initial stage of the Garrison Diversion Unit, during the pendency of this action or until further Order of this Court.
Dated May 18, 1982.