Osthus v. Whitesell Corp.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-3209

___________

Marlin O. Osthus, *

Regional Director of the *

Eighteenth Region of the National *

Labor Relations Board; *

National Labor Relations Board, *

*

Plaintiffs - Appellees, * Appeal from the United States

* District Court for the

v. * Southern District of Iowa.

*

*

Whitesell Corporation, *

*

Defendant - Appellant. *

___________

Submitted: April 13, 2010

Filed: April 22, 2011

___________

Before RILEY, Chief Judge, and COLLOTON and BENTON, Circuit Judges.

___________

BENTON, Circuit Judge.

The Regional Director of the Eighteenth Region of the National Labor

Relations Board (respectively, “Director” and “Board”) requested an injunction under

section 10(j) of the Labor Management Relations Act, 1947, 29 U.S.C. § 160(j). The

district court granted the injunction. Whitesell Corporation appeals. Having

jurisdiction under 28 U.S.C. § 1292(a)(1), this court vacates and remands.

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 29 U.S.C. §§ 158(a)(1) and (a)(5). With the Board’s authorization, the

Director also sued under § 10(j) to enjoin Whitesell’s alleged unfair labor practices

until the Board resolved the complaint. The district court granted a temporary

injunction, requiring Whitesell to rescind the implemented employment terms and to

bargain in good faith. Whitesell did not appeal that injunction, and the Board

continued processing the charges. After initially denying enforcement, this court is

considering the Board’s final order in a separately-docketed case. See NLRB v.

Whitesell Corp., No. 10-2934 (8th Cir. filed Aug. 30, 2010); NLRB v. Whitesell

Corp., 385 Fed. Appx. 613 (8th Cir. 2010) (unpublished per curiam) (denying

enforcement).

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 29 U.S.C. § 153(b); New

Process Steel, L.P. v. NLRB, ___ U.S. ___, 130 S. Ct. 2635, 2638 (2010). On

December 20, 2007, the four sitting members temporarily delegated to the General

Counsel, effective December 28, 2007, “authority on all court litigation matters” that

otherwise would require case-by-case authorization by the Board. The delegation

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stated that it gave the General Counsel full and final authority on behalf of the Board

to “initiate and prosecute injunction proceedings under Section 10(j).” See News

Release R-2653, NLRB, Labor Board Temporarily Delegates Litigation

Authority to General Counsel (Dec. 28, 2007).1

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 29 U.S.C. §§ 158(a)(1) and (5). Acting on the General Counsel’s

authorization rather than the Board’s, the Director petitioned the district court, which

granted a second § 10(j) injunction on September 11, 2009. Whitesell appeals the

order granting this injunction.

II.

Whitesell disputes the district court’s subject matter jurisdiction, asserting that

the General Counsel may not sue under § 10(j). This court reviews the issue de novo.

Borntrager v. Cent. States Se. & Sw. Areas Pension Fund, 577 F.3d 913, 919 (8th

Cir. 2009).

First, Whitesell argues that the Board may not delegate § 10(j) authority. For

more than sixty years, district courts have upheld such delegations. See Kentov v.

Point Blank Body Armor, Inc., 258 F. Supp. 2d 1325, 1329 (S.D. Fla. 2002); Penello

v. Int’l Union, United Mine Workers, 88 F. Supp. 935, 937 (D.D.C. 1950); Evans

v. Int’l Typographical Union, 76 F. Supp. 881, 888-89 (S.D. Ind. 1948). Courts of

1

The Board had also temporarily delegated its § 10(j) power in 1947, 1993, and

2001. See Overstreet v. El Paso Disposal, L.P., 668 F. Supp. 2d 988, 1001 & n.26

(W.D. Tex. 2009). The 2007 delegation was automatically revoked in April 2010

when additional members joined the Board. See News Release R-2766, NLRB, New

Board ratifies the General Counsel’s litigation authority in 2008-09 (July 8, 2010).

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appeals have upheld the 2007 delegation at issue here. Overstreet v. El Paso

Disposal, L.P., 625 F.3d 844, 852 (5th Cir. 2010); Muffley v. Spartan Mining Co.,

570 F.3d 534, 540 (4th Cir. 2009). This court adheres to this long-established

interpretation of the Labor Management Relations Act. The Board may delegate §

10(j) authority to the General Counsel.

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, 475 (D.C. Cir. 2009), cert. denied, ___

U.S. ___, 130 S. Ct. 3498, 3499 (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 § 10(j) power,

despite fluctuations in the membership of the Board.” El Paso Disposal, 625 F.3d at

853-54. The Fifth Circuit’s conclusion fits with the administrative scheme of the

Labor Management Relations Act. The Act’s framers “determine[d] that the General

Counsel of the Board should be independent of the Board’s supervision and review.”

NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 118

(1987). Indeed, the General Counsel “‘is ultimately responsible to the President and

Congress.’” Int’l Typographical Union, 76 F. Supp. at 888 n.1, quoting H.R. Rep.

510, 80th Cong., 1st Sess., at 37 (1947) (Conf. Rep.), reprinted in 1947 U.S. Code

Cong. Serv. 1135, 1143. In light of the Act’s framework and the Supreme Court’s

view of Laurel Baye Healthcare, this court joins the Fifth Circuit in concluding that

the delegation survived the loss of a Board quorum.

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.”

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Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, 689-90 (8th Cir. 2003)

(citation omitted). In this circuit, district courts apply the general four-factor

preliminary injunction test to § 10(j) petitions. Sharp v. Parents In Cmty. Action,

Inc., 172 F.3d 1034, 1038-39 (8th Cir. 1999). See also Dataphase Sys., Inc. v. C L

Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc) (formulating four-factor test).

Section 10(j) relief “is reserved for ‘serious and extraordinary’ cases.” Parents In

Cmty. Action, 172 F.3d at 1037, quoting Minnesota Mining & Mfg. Co. v. Meter, 385

F.2d 265, 270 (8th Cir. 1967).

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 . . . .” Fed.

R. Civ. P. 52(a)(1). “In granting or refusing an interlocutory injunction, the court

must similarly state the findings . . . that support its action.” Fed. R. Civ. P. 52(a)(2).

This court has disapproved a similar order that, while shorter, discussed more directly

how the plaintiff satisfied the injunction factors. See James River Flood Control

Ass’n v. Watt, 680 F.2d 543, 544 (8th Cir. 1982) (National Environmental Policy Act

case; district court order attached as Appendix B to this opinion). See also Johansen

v. San Diego County Dist. Council of Carpenters of United Bhd. of Carpenters &

Joiners, 745 F.2d 1289, 1294 (9th Cir. 1984) (§ 10(l) case) (“We must be provided

with fact findings that inform us whether the hiatus injunction of primary picketing

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will help prevent the perpetuation of the effects of the unlawful secondary boycott.

Without that information, we cannot fulfill our function of review.”).

This court vacates the district court’s order granting the § 10(j) injunction. On

remand, the district court should specially make factual findings, detailing specific

actions in the bargaining process and the facts underlying each element of the four-

factor injunction test.

* * * * * * *

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”), 29 U.S.C. § 160(j), to the General Counsel of the Board.

See Overstreet v. El Paso Disposal, L.P., 625 F.3d 844, 852 (5th Cir. 2010); Muffley

v. Spartan Mining Co., 570 F.3d 534, 540 (4th Cir. 2009); Kentov v. Point Blank Body

Armor, Inc., 258 F. Supp. 2d 1325, 1329 (S.D. Fla. 2002); Penello v. Int’l Union,

United Mine Workers of Am., 88 F. Supp. 935, 937 (D.D.C. 1950); Evans v. Int’l

Typographical Union, 76 F. Supp. 881, 888-89 (S.D. Ind. 1948). Whitesell argues

that all of these cases were decided incorrectly, primarily because the statute describes

the authority to seek an injunction as a “power” of the Board, 29 U.S.C. § 160(j),

whereas the General Counsel “shall have such other duties as the Board may prescribe

or as may be provided by law.” Id. § 153(d) (emphasis added). Whitesell contends

that the Board may not prescribe a “duty” of the General Counsel that involves the

exercise of a “power” of the Board.

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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 29 U.S.C. § 156; 29 C.F.R. § 202.35 (Supp. 1947), and also entered into

a memorandum of understanding with the General Counsel giving him full authority

to initiate and prosecute injunction proceedings under Section 10(j). See 13 Fed. Reg.

654, 655 (Feb. 13, 1948); see also Evans, 76 F. Supp. at 888 (“[A] regional director,

although an appointee of the Board, is under the supervision and is a subordinate of

the General Counsel. As a consequence, such a delegation of authority by the Board

to the regional directors as is embodied in Rule 202.35, is, in effect, nothing less than

a delegation of authority to the General Counsel.”). Although the Board repealed the

standing delegation in 1955, 20 Fed. Reg. 2175 (Apr. 6, 1955), the Board temporarily

delegated its Section 10(j) authority to the General Counsel in 1993, 2001, and 2007,

again demonstrating its view that § 153(d) permits such a delegation. See Overstreet

v. El Paso Disposal, L.P., 668 F. Supp. 2d 988, 1001 & n.26 (W.D. Tex. 2009), aff’d

as modified, 625 F.3d 844.

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. Natural

Resources Defense Council, 467 U.S. 837 (1984). Barnhart v. Walton, 535 U.S. 212,

222 (2002). In light of these considerations, the Board’s interpretation of § 153(d) –

a statute that it is charged with administering – is entitled to deference. Cf. Teamsters

Local Union No. 523 v. NLRB, 590 F.3d 849, 850-51 (10th Cir. 2009) (applying

Chevron to the Board’s interpretation of its delegation authority under § 153(b)),

abrogated on other grounds by, New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635

(2010). The Board’s view therefore governs if it is a reasonable interpretation of the

statute. Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498, 1505 & n.4 (2009).

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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 logically inconsistent for Congress to say that a superior body (the

Board) may task a subordinate official (the General Counsel) with the “duty” to

exercise some of the Board’s “power.”

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.” 29 U.S.C. § 153(d) (emphasis added). The phrase “other duties” (as opposed

to “duties” alone) in the final clause of this sentence implies that the authority

described in the first part of the sentence is also a “duty” of the General Counsel. Yet

the authority to act “in respect of the investigation of charges and issuance of

complaints under section 160” allows the General Counsel to exercise delegated

“power” of the Board. Section 160(b) provides that whenever it is charged that a

person has engaged in an unfair labor practice, the Board “shall have power to issue

and cause to be served upon such person a complaint stating the charges in that

respect.” Id. § 160(b) (emphases added). As § 153(d) contemplates that one of the

General Counsel’s “duties” is to exercise the Board’s “power” to issue complaints, the

statute does not unambiguously preclude the Board from delegating other “power”

when it prescribes the General Counsel’s “other duties” under the same provision. Cf.

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NLRB v. C & C Roofing Supply, Inc., 569 F.3d 1096, 1098 (9th Cir. 2009) (noting that

since 1955, the Board has delegated to the General Counsel, as one of his prescribed

duties, the “power to petition any court of appeals . . . for the enforcement of [an]

order and for appropriate temporary relief or restraining order.” 29 U.S.C. § 160(e)

(emphasis added)).

Other provisions of the United States Code show that Congress has used the

term “duty” to refer to a delegated “power.” In 28 U.S.C. § 547, Congress defined the

“duties” of the United States Attorney, which involve the exercise of delegated

“executive Power” granted to the President by Article II, Section 1 of the Constitution.

In § 7803(b) of the Internal Revenue Code, Congress directed that the Chief Counsel

of the IRS “shall perform such duties as may be prescribed by the Secretary,”

including “the duty” to do each thing described in subparagraphs (A) through (E) of

the section. 26 U.S.C. § 7803(b) (emphases added). Congress further provided,

however, that “[i]f the Secretary determines not to delegate a power specified in

subparagraph (A), (B), (C), (D), or (E),” such determination may not take effect until

a 30-day waiting period expires. Id. (emphasis added). Under § 7803(b), therefore,

Congress contemplated that a “power” of the Secretary could be delegated as one of

the “duties” of the Chief Counsel. See also 12 U.S.C. § 2160(b) (defining “Duties”

of the Federal Farm Credit Banks Funding Corporation as including the “exercise [of]

such other powers as were provided to the predecessor Federal Farm Credit Banks

Funding Corporation”) (emphasis added).

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 reasonably concluded that the power to seek an injunction

is prosecutorial. See id. (“If the Board itself were to petition the court for such

temporary relief, not only would it be performing a function of a prosecutive nature,

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but also it would have considered, ex parte, facts which relate to the very issues upon

which the Board must ultimately pass in its quasi-judicial capacity.”); Donald J.

Siegel, Section 10(j) of the National Labor Relations Act: Suggested Reforms for an

Expanded Use, 13 B.C. L. Rev. 457, 459 (1972) (“The current procedure gives the

Board the unfortunate opportunity both to perform a function of a prosecutive nature

and to consider, ex parte, facts relating to issues which ultimately it will have to

resolve in a quasi-judicial capacity.”). Neither the text nor the structure of the statute

establishes that Section 10(j) defines a non-delegable adjudicative power.

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 Fed. R. Civ. P. 52(a),

65(d)(1). Section 10(j) injunctions are reserved for “serious and extraordinary”

moments when “the remedial purpose of the Act would be frustrated unless immediate

action is taken.” Sharp v. Parents in Cmty. Action, Inc., 172 F.3d 1034, 1037 (8th Cir.

1999) (quoting Minn. Mining & Mfg. v. Meter, 385 F.2d 265, 270 (8th Cir. 1967)

(3M) (internal quotation marks omitted)). The district court’s conclusory order fails

to explain why “the case presents one of those rare situations in which the delay

inherent in completing the adjudicatory process will frustrate the Board’s ability to

remedy the alleged unfair labor practices.” Id. at 1039.

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 6. 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

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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

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Counsel.” Ante at 4. 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 3-4. The majority characterizes these courts’ opinions as constituting a “long-

established interpretation” of the Act. Id. at 4. 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, 130 S. Ct. 2635, 2638, 2644-45 (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., 130 S. Ct. 2149, 2156 (2010) (quoting

Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2350 (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 (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 (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.” 29 U.S.C. § 160(j) (emphasis added).

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Congress specifically authorized the Board to delegate its statutory powers in

two circumstances. First, “[t]he Board is authorized to delegate to any group of three

or more members any or all of the powers which it may itself exercise.” § 153(b).

This specific authorization to delegate the Board’s statutory powers is inapplicable

here, because the Board delegated its section 10(j) power to the General Counsel, not

three or more of its own members. Second, “[t]he Board is also authorized to delegate

to its regional directors its powers under section 159,” which include determining a

bargaining unit, finding whether a question of representation affecting commerce

exists, and directing an election. See §§ 153(b), 159. This specific authorization to

delegate the Board’s statutory powers also does not apply, because the underlying

administrative complaints allege unfair labor practices under section 158, not any

purported violation of section 159.

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.

§ 160(b).

[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.

§ 153(d).

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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 § 153(d) (emphasis added). The plain language of the statute refutes the Director’s

argument. Congress says the Board’s ability to seek section 10(j) relief is a “power,”

not a “duty.” § 160(j). “Where,” as here, “Congress includes particular language in

one section of a statute but omits it in another section of the same [statute], it is

generally presumed that Congress acts intentionally and purposely in the disparate

inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983) (quotation

omitted); see Padash v. I.N.S., 358 F.3d 1161, 1169 n.7 (9th Cir. 2004) (quoting SEC

v. McCarthy, 322 F.3d 650, 656 (9th Cir. 2003) (“It is a ‘well-established canon of

statutory interpretation that the use of different words or terms within a statute

demonstrates that Congress intended to convey a different meaning for those words,’”

and a court “must assume that the difference in usage is legally significant.”). I would

follow the Supreme Court’s well-established canons of statutory construction and

“refrain from concluding here that the differing language in the two subsections has

the same meaning in each.” Russello, 464 U.S. at 23; see, e.g., Werner Enters., Inc.

v. MNX Carriers, Inc., 163 F.3d 490, 491 (8th Cir. 1998) (defining “duty” as “an

obligation to do a thing” and “right” as “a power or privilege to do a thing,” and

holding a defendant “cannot simultaneously have the discretionary power to demand

a showing of identification and be obligated to demand such a showing”).

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, section 10(l), provides that when the unfair labor practice

charged is a secondary boycott or certain strikes, the officer or regional attorney

“shall, on behalf of the Board, petition [the] district court . . . for appropriate

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injunctive relief pending the final adjudication of the Board with respect to such

matter.” § 160(l). Section 10(l) thus requires the regional director to petition the

district court when specific types of unfair labor practices are alleged. In contrast,

section 10(j) gives the power to seek an injunction only to the Board when other types

of unfair labor practices are alleged. See Gottfried v. Frankel, 818 F.2d 485, 492 (6th

Cir. 1987) (“We believe that the language in section 10(l) was intended to allow a

Regional Director to obtain injunctive relief without Board approval when filing for

injunctive relief is mandatory under the NLRA. In contrast, the Board has discretion

as to whether a section 10(j) petition will be filed; in such a circumstance, the Board

must approve the filing of a section 10(j) petition.”).

As discussed in Part I above, Ҥ 10(j) is a limited exception to the federal policy

against labor injunctions,” and “is reserved for ‘serious and extraordinary’ cases when

‘the remedial purpose of the Act would be frustrated unless immediate action is

taken.’” Sharp, 172 F.3d at 1037 (quoting 3M, 385 F.2d at 270). Because a

temporary injunction under section 10(j) is an extraordinary remedy that is meant to

be afforded sparingly, and Congress gave the power to seek it only to the Board, the

Board may not delegate that power. Compare Lewis v. NLRB, 357 U.S. 10, 14-15

(1958) (deciding the Board’s obligation to issue subpoenas could be delegated to

regional directors because it is a ministerial act requiring no exercise of discretion),

and NLRB v. Duval Jewelry Co. of Miami, Inc., 357 U.S. 1, 6-8 (1958) (concluding

the Board can delegate the preliminary ruling on a motion to revoke subpoena to a

regional director or hearing officer because the Board retains the final decision on

appeal), with Cudahy Packing Co. of La., Ltd. v. Holland, 315 U.S. 357, 364 (1942)

(declining to infer authority to delegate the administrator of the Wage and Hour

Division of the Department of Labor’s statutory power to sign and issue a subpoena

duces tecum, stating “it seems to us fairly inferable that the grant of authority to

delegate the power of inspection and the omission of the authority to delegate the

subpoena power shows a legislative intention to withhold the latter”), and United

States v. Giordano, 416 U.S. 505, 514 (1974) (declaring that the Attorney General

could not delegate his wiretapping authorization power to his executive assistant

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where “the matter of delegation is expressly addressed by [18 U.S.C.] § 2516, and the

power of the Attorney General in this respect is specifically limited to delegating his

authority to ‘any Assistant Attorney General specially designated by the Attorney

General’”). See also Halverson v. Slater, 129 F.3d 180, 184-85 (D.C. Cir. 1997)

(holding the Secretary of the Department of Transportation could not delegate the

Great Lakes Pilotage Act (GLPA) “duties and powers” to an officer or employee of

the Department of Transportation, where the statute contains a specific grant of GLPA

“duties and powers” to the Coast Guard officials only).

Instead of grappling with the relevant statutory language, the majority stresses

“[f]or more than sixty years, district courts have upheld such delegations” and

“[c]ourts of appeals have upheld the 2007 delegation at issue here.” Ante at 3-4. I do

not find these non-precedential cases persuasive.

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

section 10(j). See id. at 889. The power to petition the district court to enjoin the

alleged unfair labor practices during the entire pendency of the Board’s adjudicative

process is significant, and is not akin to whatever “other duties” the Board may assign

to the General Counsel.

The court in Evans also concluded that the power to seek injunctive relief under

section 10(j) was delegable because “[i]t is not unreasonable to assume that Congress

intended that the Board might delegate to the General Counsel duties equal in

importance” with the General Counsel’s statutory authority to issue and prosecute

complaints. Id. This statement equates the terms “powers” and “duties,”

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contradicting the different words Congress expressly used. Further, the General

Counsel’s power to prosecute complaints is “before the Board.” § 153(d).

Conversely, the power to seek temporary injunctive relief is before the district court,

and is therefore not so analogous that a court should assume they go hand-in-hand.

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 section 10(j) relief

is prosecutorial because “[w]hether the Board or the General Counsel petitions a

district court for relief, the adjudicative function—the ultimate decision to grant

relief—lies with the district court.” Id.

As Whitesell suggests, the “central question is whether Congress authorized the

Board to delegate its powers under § 10(j), not whether those powers are prosecutorial

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or judicial.” To the extent any distinction between prosecutorial and adjudicative

functions is pertinent, the line of demarcation in Evans is poorly drawn.

Section 10(j) was enacted as part of the Labor Management Relations Act of

1947 (LMRA), the “Taft-Hartley” Act. See Muniz v. Hoffman, 422 U.S. 454, 462

(1975). “The words, structure, and history of the LMRA amendments to the NLRA

clearly reveal that Congress intended to differentiate between the General Counsel’s

and the Board’s ‘final authority’ along a prosecutorial versus adjudicatory line.”

NLRB v. United Food & Commercial Workers Union, Local 23, AFL-CIO, 484 U.S.

112, 124 (1987). But the purpose of the section 10(j) remedy is to protect the Board’s

adjudicatory process, see Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185, 1188

(5th Cir. 1975), and Congress gave the power to seek section 10(j) relief to the Board.

Conversely, the General Counsel’s prosecutorial authority is specifically provided by

section 3(d): the General Counsel has final authority to prosecute complaints “before

the Board,” in addition to investigating charges and issuing complaints. § 153(d).

While it is the district court that grants section 10(j) relief, it does so only when the

Board’s ability to remedy the alleged unfair labor practices would be frustrated by the

delay in the Board’s adjudicatory process. See Sharp, 172 F.3d at 1039; Boire, 515

F.2d at 1188. And as discussed, Congress called this function a “power,” not a

“duty.” Thus, contrary to the Fourth Circuit, I conclude that seeking section 10(j)

relief is part of the Board’s adjudicatory power and may not be delegated to the

General Counsel.

The Director also argues that Congress expressed its intent to allow section

10(j) relief to be delegated to the General Counsel by not amending the language in

section 3(d) despite the courts approving such delegation. See Lorillard v. Pons, 434

U.S. 575, 580 (1978) (“Congress is presumed to be aware of an administrative or

judicial interpretation of a statute and to adopt that interpretation when it re-enacts a

statute without change.”). Congress has not changed the controlling language of

section 3(d) since its enactment in 1947. “[W]hen, as here, Congress has not

comprehensively revised a statutory scheme but has made only isolated amendments,

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[the Supreme Court has] spoken more bluntly: ‘It is impossible to assert with any

degree of assurance that congressional failure to act represents affirmative

congressional approval of the Court’s statutory interpretation.’” Alexander v.

Sandoval, 532 U.S. 275, 292 (2001) (quoting Patterson v. McLean Credit Union, 491

U.S. 164, 175, n.1 (1989)).

The Board and General Counsel are creatures of statute, and ours is a nation of

laws not bureaucrats. Because Congress gave section 10(j) power only to the Board,

the General Counsel cannot exercise this power unless Congress provides for its

delegation. “The judiciary is the final authority on issues of statutory construction and

must reject administrative constructions which are contrary to clear congressional

intent.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843

n.9 (1984). The Board could not lawfully delegate its section 10(j) power to the

General Counsel, and thus the district court lacked jurisdiction to consider the General

Counsel’s request for a section 10(j) injunction.

III. LOSS OF QUORUM

Even if the Board could lawfully delegate its section 10(j) power to the General

Counsel, the Board’s subsequent loss of a quorum precluded the General Counsel

from seeking the injunction in this case. As the majority recognizes, see ante at 4, our

sister circuit courts of appeals are divided on this question. Compare Laurel Baye

Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 472-76 (D.C. Cir. 2009), with

Overstreet v. El Paso Disposal, L.P., 625 F.3d 844, 852-54 (5th Cir. 2010). The

majority favors the Fifth Circuit’s conclusion in El Paso Disposal that (1) “the

Supreme Court declined to endorse the D.C. Circuit’s position” in New Process Steel,

130 S. Ct. at 2642 n.4, and (2) “[t]he Fifth Circuit’s conclusion fits within the

administrative scheme of the [Act].” Ante at 4. The majority reasons Congress

“determined that the General Counsel of the Board should be independent of the

Board’s supervision and review.” Id. (quoting United Food & Commercial Workers

Union, 484 U.S. at 118) (alteration omitted).

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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 (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.

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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. (1 Wall.) 520, 522

(1870) (recognizing the principle that an agent’s power ceases upon the principal’s

death); Galt v. Galloway, 29 U.S. (1 Pet.) 332, 344 (1830) (same); Hunt v.

Rousmanier’s Adm’rs, 21 U.S. (1 Wheat.) 174, 201-03 (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.

______________________________

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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 section 10 (j) of the National Labor Relations Act

(Act) to cease engaging in unfair labor practice activities.

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).

1

The NLRB decision based on that ALJ’s findings and conclusions presently

is before the United States Court of Appeals for the Eighth Circuit, but no decision has

been issued yet.

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The court finds Whitesell prematurely declared an impasse in negotiations,

engaged in regressive bargaining, refused union requests for information, improperly

unilaterally altered the workers’ benefits and working conditions, and attempted to

undermine the employees’ confidence in their union and its representatives.

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.

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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

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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.

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