Opposition Brief — Beverly Health & Rehabilitation Services, Inc. v. Kobell

Supreme Court brief1999

Ask Donna

What actually matters in this document.

Text

Supreme Court, US,

FILED

DEC 22 1998

No. 98-492 OFFICE OF THE CLERS :

So eet

Jn the Supreme Court of the Ginited States

OCTOBER TERM, 1998

BEVERLY HEALTH AND REHABILITATION

SERVICES, INC., ET AL., PETITIONERS

GERALD KOBELL, REGIONAL DIRECTOR FOR REGION SIX

OF THE NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

FREDERICK L. FEINSTEIN

General Counsel

LINDA SHER

Associate General Counsel

NORTON J. COME

Deputy Associate General

Counsel

JOHN EMAD ARBAB

Attorney

National Labor Relations Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether the court of appeals erred in summarily

affirming the district court’s determination that the

Regional Director of the National Labor Relations

Board was entitled to interim injunctive relief, pur-

suant to Section 10(j) of the National Labor Relations

Act, 29 U.S.C. 160(j), pending the Board’s disposition of

an administrative complaint against petitioners.

(I)

TABLE OF CONTENTS

Page

I a AS loo l

ee, ESR SII STEEN Pre ee RO lek a RCO l

ARNO RNGET AER NC er ae aces OS 2

ng GEER ANTES SERS RDN ey Tee OE a ele i)

oe cite a BRACES ARR EE GER ce OEE OREO MRT 22

TABLE OF AUTHORITIES

Cases:

Arlook v. S. Lichtenberg & Co., 952 F.2d 367 (11th

Lk. BATE SONS SS 2a coe SEN ee ee cg 10, 11

Asseo v. Pan Am. Grain Co., 805 F.2d 23 (1st Cir.

IIIT sliieiaaldsiig aces nrlitiienhiticcasabtesa laesadsdncccaellnus winsieacinasaneco, 16

Bio-Medical Applications, Inc., 240 N.L.R.B. 432

NN Mabie tdala caetdiad cect aderesbicciemnisisconiatsescscscsasicces 6, 15, 18, 20

Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185

(5th Cir. 1975), cert. denied, 426 U.S. 934 (1976) ........... 10, 11

Bricklayers & Allied C "raftsmen, Local 40 (Lake

Shore Hosp.), 252 N.L.R.B. 252 (1980) ..cccccccceccssssscsesoseeoes 6

Brownlow v. Schwartz, 261 U.S. 216 (1923) ...................... 13

California Nurses Ass'n (City of Hope Nat'l Med.

aig, MAM Reka Mb Eh, WO CIM) Savicscssccsecsscacesonsncesnesazsoasesco.e 6, 21

Chevron U.S.A. Inc. v. Natural Resources Defense

reece? Lh SOT tsGee) 17

Danielson v. Joint Bd. of Coat Garment Workers’

Union, 494 F.2d 1230 (2d Cir. 1974) coeccccccccccccccccoccccocoseee. 10, 17

Eisenberg v. Lenape Prods., Inc., 781 F.2d 999

SES ERTS RDA SI nee ee 12

Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d 26

I ca aia cei ie sacaracaascesssanees 11

Frye v. Specialty Envelope, Inc., 10 F.3d 1221 (6th

WISI SERS ROR ee it a Ie a 10, 11

Hecht Co. v. Bowles, 321 U.S. 321 (1944) c.ccccccccscssccssseesece 12

Holly Farms Corp. v. NLRB, 517 U.S. 392 (1996) .......... 19

(IID)

Cases—Continued: Page

Kaynard v. Mego Corp., 633 F.2d 1026 (2d Cir.

SNOT sickieocedsssindacchinnscencenlicbanionibieaiegas aavemieaemnatiniancsecannes 11

Kinney v. Pioneer Press, 881 F.2d 485 (7th Cir.

SUMED sasistichicas tv ccesecaanbliveccckasteicn dei aeaebetinhapeisdeaeaaicepiadinbipaiabiinles 11,17

Kobell v. Suburban Lines, Inc., 731 F.2d 1076 (8d

CEP SIIIGD icciicnsicsistepsiahsssidegisiechieedinenieleiidoanleibitadaeitebinsihohaen 5, 10, 11, 12

Lewis v. New Orleans Clerks & Checkers, 724 F.2d

e.g) Ee AB | ORRREE RTE are aiamme Peromer es 15

Local No. 8-6, Oil Workers Int'l Union v. Missouri,

RE Ae se CE eiciidincsiadasis ented ehcnlg tate tbhipintopanians 13

Mastro Plastics Corp. v. NLRB, 350 U.S. 270

£2: > SARIN Se sccee Set ah BI GH R E ae esone e 20

McLeod v. General Elec. Co., 385 U.S. 538

CIEE cscbshseinslescunclicadikdmensaeitasnationctiatilaacscasigaaiianinidiantiathediontind 14

Miller v. California Pac. Med. Ctr., 19 F.3d 449

CERRa SAN, ROD casicecicatcieeinths acai ieee capiashccnintiness 12, 16, 21

NLRB vy. Auciello Iron Works, Inc., 60 F.3d 24

(1st Cir. 1995), aff’d, 517 U.S. 781 (1996) ..........sccseccesecenees 21

NLRB vy. Electro-Voice, Inc., 83 F.3d 1559 (7th Cir.

1996), cert. denied, 117 S. Ct. 683 (1997) eee ceeeeeees 12, 16

NLRB vy. Washington Heights-West Harlem-Inwood

Mental Health Council, Inc., 897 F.2d 1238 (2d Cir.

LIDS secieits iciennninentnvennninneyciiapieaanianiniaraediniaesiinicaaptinanssiainn 19

Pascarell v. Vibra Screw Inc., 904 F.2d 874 (3d

Zar. SEEE? secncsmiinuinipieniensitiniadieeadnisniedialaainiianidiiapnibeaianiiaaees 4,5

Pye v. Sullivan Bros. Printers, Inc., 38 F.3d 58

(Zak Cab. SDE) seviicecnssives icikaai ese aduplaiaiieaslesidsienialasailnindeishaseaeie 16

Rivera-Vega v. Conagra, Inc., 70 F.3d 153 (1st Cir.

CUO? vsnvisicheacsnvennmipiianthiiantaiacengumeaticomnialtienbeoninapnineiaaisinions 10, 11-12

Silverman v. Major League Baseball Player Rela-

tions Comm., Inc., 67 F.3d 1054 (2d Cir. 1995) ........... 11, 21

Tom Doherty Assocs., Inc. v. Saban Entertain-

ment, Inc., 60 F.3d 27 (2d Cir. 1995) ........cc.cccccccssossssscessees 16

University of Texas v. Camenisch, 451 U.S. 390

CRIDIED : ssinseitisinicinieniestovebiaisisdnddheciacacetaciahtaaeishansapalbemadoheatianisegien tba 13, 21

Cases—Continued: Page

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ...... 12

Statutes:

Federal Water Pollution Control Act, 33 U.S.C.

BUEE We NE: SididhaslscivnieseiitichaaiatioaNasuniin cae Fhe 12

National Labor Relations Act, 29 U.S.C. 151 et MOO. scchascios 2

Be rae SURI E vinnilcicsncictonusaiensuieeiegnidein eects a 3

Br I a SE? to binwsichtestasaateeaic encima aicge tase 3

et SFE: AND sicidiciabs sal cditacinafesrtecebestiab binds anionic cons 2

ck akg. | | Snir biet ecal era Reni, Mee eee 3, 4, 10

Miscellaneous:

Black’s Law Dictionary (5th €d. 1979) cocccccccccccsececseesesessesseee 18

H.R. Rep. No. 1051, 93d Cong., 2d Sess. (1974) -.cccccccccseseeees 20

S. Rep. No. 766, 93d Cong., 2d Sess. (1974) c.ccccccccsseseesseseseee 20

Ee —— pees ee — Sates Pe ae - to 4 . asi a a = es eee ae

In the Supreme Court of the United States

OCTOBER TERM, 1998

No. 98-492

BEVERLY HEALTH AND REHABILITATION

SERVICES, INC., ET AL., PETITIONERS

Vv.

GERALD KOBELL, REGIONAL DIRECTOR FOR REGION SIX

OF THE NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

The judgment order of the court of appeals (Pet. App.

B5-B7) is unpublished, but the judgment is noted at 142

F.3d 428 (Table). The opinion of the district court (Pet.

App. C24-C47) is reported at 987 F. Supp. 409. An

earlier opinion of the district court (Pet. App. C10-C23)

is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

February 18, 1998. A petition for rehearing was denied

on July 2, 1998. Pet. App. B3-B4. The petition for a

(1)

writ of certiorari was filed on September 23, 1998. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. Petitioners Beverly Health and Rehabilitation

Services, Inc. and Beverly Enterprises-Pennsylvania,

Ine. operate twenty nursing homes in Pennsylvania.

Pet. 1; Pet. App. C11.’ The employees at those facilities

are represented by locals of the Service Employees

International Union (Union). Pet. App. C25 n.1. After

the collective-bargaining agreements covering the

facilities expired on November 30, 1995, petitioners and

the union began negotiating new agreements; the em-

ployees continued to work as negotiations proceeded.

Id. at C11.

The Union later filed unfair labor practice charges

against petitioners with the National Labor Relations

Board (Board). In particular, the Union alleged that,

after the collective-bargaining agreements expired,

petitioners (among other things) unilaterally changed

the employees’ terms and conditions of employment in

violation of the National Labor Relations Act (Act), 29

U.S.C. 151 et seq. Pet. App. C11-C12. On March 15,

1996, the Union gave petitioners written notice, pur-

suant to Section 8(g) of the Act, 29 U.S.C. 158(g),® that

1 Each of the twenty facilities is also named as a petitioner

before this Court. Pet. iii, 1. For purposes of this case, petitioners

are treated collectively as a single employer. Pet. App. C10-C11,

C44.

2 In relevant part, Section 8(g) provides: “A labor organization

before engaging in any strike * * * at any health care institution

shall, not less than ten days prior to such action, netify the

institution in writing * * * of that intention. * * * The notice

shall state the date and time that such action will commence. The

it intended to commence an unfair labor practice strike

at fifteen of the facilities on March 29, 1996, at 7:00 a.m.

Pet. App. C12.

A strike did not begin, however, on March 29, 1996.

Rather, on March 27, the Union notified petitioners in

writing that it planned to delay the commencement of

the strike by 71 hours, from March 29 at 7:00 a.m. to

April 1 at 6:00 a.m. Pet. App. C12, C28. Petitioners ad-

vised the Union that, in their view, the Union’s exten-

sion notice “failed to fulfill the literal statutory require-

ments set forth in §8(g),” and that they “would consider

unlawful any strike held pursuant to the seventy-one

hour extension notice.” Jd. at C13. The Union com-

menced a strike at the fifteen facilities on April 1 in any

event. /bid. The strike concluded on April 4, when the

employees made petitioners an unconditional offer to

return to work; petitioners, however, refused to rein-

state many of the former strikers. Jd. at C28-C29; see

also id. at C13. The Union therefore filed further unfair

labor practice charges with the Board in which they

challenged petitioners’ refusal to reinstate the former

strikers.

2. a. Acting on the Union’s charges, the Board’s

Genera! Counsel issued a consolidated administrative

complaint against petitioners on June 19, 1996. Pet.

App. C14. The administrative complaint alleged,

among other things, that petitioners violated Section

8(a)(1) and (3) of the Act, 29 U.S.C. 158(a)(1) and (3), by

failing to reinstate about 450 employees at the con-

clusion of the strike. App. A, infra, 2a-3a. On July 8,

1996, the Board’s Regional Director filed a petition in

federal district court under Section 10(j) of the Act, 29

notice, once given, may be extended by the written agreement of

both parties.” 29 U.S.C. 158(g).

U.S.C. 160(j), which authorizes the Board to seek, and

district courts to grant, such preliminary and interim

injunctive relief as is “just and proper.”* Pet. App. C14.

Among other things, the Regional Director requested

that the district court order petitioners to reinstate all

employees who had unconditionally offered to return to

work at the conclusion of the strike, pending the

Board’s adjudication of the unfair labor practice com-

plaint. Jd. at C11, C14-C15. One week later, on July 15,

1996, a hearing on the administrative complaint com-

menced before an administrative law judge (ALJ).

App. A, infra, la.

b. On April 4, 1997, the district court granted the

Regional Director’s request for an interim injunction

under Section 10(j). Pet. App. C24-C47; see also id. at

C10-C23 (earlier unreported decision). The court ex-

plained that “[t]he temporary relief available under

§10(j) requires a determination by the district court of

‘whether there is reasonable cause to believe that an

unfair labor practice has occurred and whether an

injunction would be just and proper.’” Pet. App. C33

(quoting Pascarell v. Vibra Screw Inc., 904 F.2d 874,

877 (3d Cir. 1990)) (internal quotation marks and foot-

note omitted). “Reasonable cause,” the court noted,

requires “a substantial, non-frivolous, legal theory, im-

plicit or explicit, in the Board’s argument,” and, “taking

3 In relevant part, 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, within any district

wherein the unfair labor practice in question is alleged to have

occurred * * *, for appropriate temporary relief or restraining

order. Upon the filing of any such petition the court * * * shall

have jurisdiction to grant to the Board such temporary relief or

restraining order as it deems just and proper.” 29 U.S.C. 160()).

the facts favorably to the Board * * * sufficient

evidence to support that theory.” Pet. App. C17

(quoting Vibra Screw, 904 F.2d at 882). To determine

whether interim injunctive relief is “just and proper,”

the court further noted, “[t]he focus * * * is * * *

‘on the unusual likelihood . . . of ultimate remedial

failure’” of a Board order, absent an injunction. Pet.

App. C36 (quoting Kobell v. Suburban Lines, Inc., 731

F.2d 1076, 1091 n.26 (8d Cir. 1984)).

The court concluded that the Regional Director had

satisfied the “reasonable cause” requirement for in-

terim injunctive relief under Section 10(j). Pet. App.

C19-C23, C34-C36. In particular, the court found that

the Regional Director had “present{ed] evidence that

would support not only the elements of the unfair labor

practices prior to the strike, but also that the strike was

in protest of the alleged unfair labor practices.” Jd. at

C35-C36. Under settled law, the court noted, “unfair

labor practice strikers * * * are entitled to immediate

reinstatement upon making an unconditional offer to

return to work.” Jd. at C21 n.3.

In making its “reasonable cause” finding, the court

rejected petitioners’ contention that, because “the

notice extending the strike date for 71 hours was issued

unilaterally” rather than with petitioners’ agreement,

the ensuing strike was not protected by the Act. Pet.

App. C15-C16. Instead, the court concluded that “the

Board’s legal theory that the April 1, 1996 strike com-

plied with the notice requirements of §8(g) [is] sub-

stantial and nonfrivolous.” Jd. at C34. In response to

petitioners’ contention that Section 8(g) bars extensions

of strike notices except by written agreement between

the parties, the court explained that (under long-

standing Board precedent) written agreement is not

the e«wclusive mechanism for extending strike notices.

Instead, the Board repeatedly had held that a union can

unilaterally extend strike notices for a short time (7.e.,

less than 72 hours), so long as the union also provides at

least 12 hours of advance notice to the employer. Jd. at

C19-C20 (citing Bio-Medical Applications, Inc., 240

N.L.R.B. 432 (1979)).* The district court saw no reason

why the Board’s construction of Section 8(g) should not

be given deference, given the Board’s expertise and the

strong support for its construction in Section 8(g)’s

legislative history. See Pet. App. D56 (“I believe that

[the Board is] entitled to deference because of the

special expertise that they have and because also * * *

the legislative history was entitled to some deference

there as well.”).

The court also concluded that the Regional Director

had satisfied the “just and proper” requirement for

interim injunctive relief under Section 10(j). Pet. App.

C36-C42, C44-C45. The Regional Director had pre-

sented “sufficient evidence to demonstrate that, with-

out the issuance of an injunction, the Board’s ultimate

remedial powers may be frustrated.” Jd. at C41. Peti-

* In Bio-Medical, the Board held that the language of Section

8(g) “does not expressly provide that a written agreement of the

parties is the exclusive manner of extending an initial strike date,”

and that such a “restrictive interpretation” would be “clearly con-

trary to the expressed intent of Congress as revealed in the legis-

lative history of Section 8(g).” 240 N.L.R.B. at 434. The Board

held that a union may extend “the time set forth in the initial 10-

day notice for the commencement of a strike by unilateral noti-

fication to the employer, at least in circumstances in which post-

ponement of the strike is between 12 and 72 hours of the time set

forth in that initial notice and where there is at least 12 hours

advance notice given to the employer of the postponement.” Jd. at

435. See also Bricklayers & Allied Craftsmen, Local 40 (Lake

Shore Hosp.), 252 N.L.R.B. 252, 253 (1980); California Nurses

Ass’n (City of Hope Nat'l Med. Ctr.), 315 N.L.R.B. 468, 468 (1994).

— ———

tioners’ alleged unfair labor practices, the court ex-

plained, had been “sélectively geared to destroy or at

least impede the communication network among

[UJnion members”; the alleged violations “tended to

* * * impede whatever collective bargaining has oc-

curred”; and, “{iJn the absence of full reinstatement, the

communication network of the [Union] at some of the

facilities may be nonexistent when final adjudication by

the Board is issued.” Jd. at C41-C42, C45.

Accordingly, the district court issued a Section 10(j)

interim injunction requiring petitioners to “offer full

reinstatement to all employees who engaged in the

unfair labor practice strike which began on April 1,

1996, said reinstatement to be to their former positions

of employment * * * displacing, if necessary, any

employees hired to replace said employees.” Pet. App.

C46. The court specified that the order would “expire

six months from the date of its issuance,” i.e., on Octo-

ber 4, 1997, but provided that the Regional Director

could seek extensions as appropriate. Jd. at C46-C47.

3. Petitioners appealed. On February 18, 1998, the

court of appeals summarily affirmed the district court’s

issuance of the Section 10(j) injunction. Pet. App. B5-

B7.

a. While the appeal was pending, on June 28, 1997,

petitioners and the Union entered into new collective-

bargaining agreements covering the employees at peti-

tioners’ facilities. The new contracts contain a pro-

vision entitled “Reinstatement Agreement,” which

states:

Notwithstanding the pending litigation relating to

the 1996 strike, or the term of this Agreement, the

Employer agrees to complete the reinstatement of

all strikers to their former positions prior to the

strike, as required by the 10(j) injunction, regard-

less of the outcome of this litigation.

C.A. Supp. App. 1, 10 (reproduced at App. B, infra,

23a).°

b. On November 26, 1997—after the new collective

bargaining agreements were signed, but before the

appeal was decided—the ALJ assigned to the admin-

istrative proceedings instituted against petitioners

issued his decision. App. A, infra, la-18a. The ALJ

found that petitioners had committed “numerous and

diverse unfair labor practices before the strike,” and

that “the strike was to protest those unfair labor prac-

tices.” Jd. at'7a. The ALJ thus concluded that peti-

tioners “had an obligation under the Act immediately to

reinstate the strikers to their former positions upon

their unconditional offer to return to work,” and that

“their failure to do so constitutes an additional unfair

labor practice.” bid. (footnotes omitted).

The ALJ rejected petitioners’ contention that, be-

cause “the Union’s action in extending the [strike]

deadline was taken unilaterally * * * the subsequent

3-day strike commencing on April 1 was unlawful.”

App. A, infra, 4a. Instead, he concluded that the

Union’s extension of the strike date was proper under

Bio-Medical, supra, where the Board “adopt{ed] the 72-

° The parties provided that the new contracts would become

effective as to two particular bargaining units (the service and

maintenance unit at Grandview Healthcare and the unit of licensed

practical nurses at Mt. Lebanon Manor Convalescent Center) in

the event that the Union prevailed on charges that petitioners un-

lawfully withdrew recognition from the Union as the representa-

tive of those employees. App. B, infra, 21a-22a. In the summer of

1997, the Regional Director issued administrative complaints

against petitioners, based in part on those charges. The complaints

are presently pending before an ALJ.

hour window and 12-hour advance notice rule as a

parameter for allowing [unilateral] extensions of strike

times previously announced in notices issued under

Section 8(g).” App. A, infra, 5a; see also id. at 4a. The

ALJ therefore ordered petitioners, among other things,

“to offer immediate reinstatement to their former jobs

to all employees who went on strike on April 1 * * *

and to make them * * * whole for any loss of wages

and other benefits.” Jd. at 8a.

On February 6, 1998, petitioners filed exceptions to

the ALJ’s decision with the Board. Petitioners’ excep-

tions are currently pending before the Board.

ce. During the pendency of the appeal, the Regional

Director twice sought and obtained extensions of the

interim relief entered by the district court under

Section 10). App. C, infra, 24a-25a; App. D, infra, 26a-

27a. After the second extension, the interim injunction

was set to expire on May 4, 1998. Following the ALJ’s

issuance of his decision, the court of appeals’ affirmance

of the district court order, and petitioners’ and the

Union’s agreements for reinstatement of striking

workers, the Regional Director decided not to seek any

further extension of the Section 10(j) interim injunction.

Accordingly, on May 4, 1998, the injunction

automatically expired, App. D, infra, 27a, and peti-

tioners are no longer subject to its requirements.

ARGUMENT

Petitioners seek review of the court of appeals’ order

summarily affirming the district court’s issuance of a

Section 10(j) injunction. In particular, petitioners argue

that courts of appeals have articulated different

standards for determining whether such Section 10(j)

injunctions should issue. See Pet. 6. But petitioners’

challenge to the propriety of the district court’s deci-

sion to issue an injunction in this case, and to the appro-

priateness of the standard that court employed, is

largely academic and potentially moot. Moreover, be-

cause the interim injunction would have been proper

under any standard, this case is not an appropriate

vehicle for resolving the alleged conflict identified by

petitioners. Accordingly, the petition for certiorari

should be denied.

1. Section 10(j) of the National Labor Relations Act,

29 U.S.C. 160(j), “authorizes the NLRB to seek, and the

United States district courts to grant, interim relief

pending the NLRB’s resolution of unfair labor prac-

tices.” Rivera-Vega v. Conagra, Inc., 70 F.3d 153, 158

(1st Cir. 1995). As petitioners point out, the courts of

appeals have adopted somewhat different approaches to

the determination of whether the Regional Director is

entitled to a Section 10(j) injunction. Most courts

(including the Third Circuit) follow a two-step inquiry.

First, they determine whether the Regional Director

has demonstrated “reasonable cause” to believe that

the party against whom relief is sought has violated the

Act; proof of “reasonable cause,” the courts generally

agree, includes a showing that the Regional Director’s

legal theories are “substantial and not frivolous.”®

6 See Kobell v. Suburban Lines, 731 F.2d 1076, 1084 (3d Cir.

1984); Frye v. Specialty Envelope, Inc., 10 F.3d 1221, 1225 (6th Cir.

1993) (per curiam); Arlook v. S. Lichtenberg & Co., 952 F.2d 367,

371 (11th Cir. 1992); Boire v. Pilot Freight Carriers, Inc., 515 F.2d

1185, 1188-1189 (5th Cir. 1975), cert. denied, 426 U.S. 934 (1976).

Cf. Danielson v. Joint Bd. of Coat Garment Workers’ Union, 494

F.2d 1230, 1244-1245 (2d Cir. 1974) (although district court’s “duty

of scrutiny” is not limited to determining whether Regional

Director’s claim is “insubstantial and frivolous,” nonetheless, “on

an issue of law, the district court should be hospitable to the views

of the General Counsel » »wever novel”).

Second, the courts ask whether the Regional Director

has shown that an injunction would be “just and

proper” under the circumstances.’ In making the “just

and proper” inquiry, courts often ask (as the Third

Circuit does) “whether the failure to grant interim

injunctive relief would be likely to prevent the Board

* * * from effectively exercising its ultimate remedial

powers.” Some courts also require an inquiry into the

traditional equitable factors governing the issuance of

preliminary relief.’

Two courts of appeals have adopted a different

verbal formula. They ask only whether relief is “just

and proper,” and do so by “evaluat{ing] the propriety of

the [Regional] Director’s request with an eye toward

the traditional equitable principles that normally guide

such an inquiry,” Kinney v. Pioneer Press, 881 F.2d

485, 490 (7th Cir. 1989), 7.e., the Regional Director’s

“likelihood of success on the merits,” “the potential for

irreparable injury in the absence of relief,” whether

“such injury outweighs any harm preliminary injunc-

tive relief would inflict on the employer” and whether

“preliminary relief is in the public interest,” Conagra,

7 See, e.g., Silverman v. Major League Baseball Player Rela-

tions Comm., Inc., 67 F.3d 1054, 1059 (2d Cir. 1995); Suburban

Lines, 731 F.2d at 1079; Specialty Envelope, 10 F.3d at 1224-1225;

S. Lichtenberg & Co., 952 F.2d at 372; Pilot Freight Carriers, 515

F.2d at 1188-1189.

8 Suburban Lines, 731 F.2d at 1091-1092. See also S. Lichten-

berg & Co., 952 F.2d at 372; Fleischut v. Nixon Detroit Diesel, Inc.,

859 F.2d 26, 30 (6th Cir. 1988).

® See Conagra, 70 F.3d at 164; Kaynard v. Mego Corp., 633

F.2d 1026, 1033 (2d Cir. 1980). Cf. Pilot Freight Carriers, 515 F.2d

at 1192-1193 (“though traditional rules of equity may not control

the proper scope of §10(j) relief, some measure of equitable princi-

ples come into play”)

70 F.3d at 164.” Although that formulation differs from

the two-part “reasonable cause” and “just and proper”

approach used by other courts, in practice the same

result is often reached under either test.

2. Notwithstanding the different verbal formulae

used by various appellate courts,” this case does not

present a suitable vehicle for resolving any conflict that

0 See also NLRB v. Electro-Voice, Inc., 83 F.3d 1559, 1566-1567

(7th Cir. 1996), cert. denied, 117 S. Ct. 683 (1997); Miller v.

California Pac. Med. Ctr., 19 F.3d 449, 456-461 (9th Cir. 1994) (en

banc).

| Although we agree that the courts of appeals have used dif-

ferent verbal formulae, we do not agree with petitioners’ further

contention (Pet. 14-19) that the two-step framework used by the

district court in this case is inconsistent with Weinberger v.

Romero-Barcelo, 456 U.S. 305 (1982), and Hecht Co. v. Bowles, 321

U.S. 321 (1944). In Romero-Barcelo, this Court concluded that the

Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., does

not “requir[e] a district court to issue an injunction for any and all

statutory violations”; rather, the Court construed the statute “‘in

favor of that interpretation which affords a full opportunity for

equity courts to treat enforcement proceedings . . . in accordance

with their traditional practices, as conditioned by the necessities of

the public interest which Congress has sought to protect.’” 456

U.S. at 320 (quoting Hecht Co., 321 U.S. at 330). In Hecht Co., the

Court reached a similar conclusion with respect to a federal emer-

gency price control statute. See 321 U.S. at 328-330 (“A grant of

jurisidiction to issue compliance orders hardly suggests an ab-

solute duty to do so under any and all circumstances.”). Consistent

with those holdings, the two-step framework applied by the dis-

trict court does not require issuance of an injunction under Section

10(j) “for any and all statutory violations.” Romero-Barcelo, 456

U.S. at 320. To the contrary, federal courts may deny interim

relief if it is not “just and proper,” such as where the Board cannot

show that the absence of interim injunctive relief could potentially

jeopardize its ability to offer a full and effective remedy for the

violation. See, e.g., Eisenberg v. Lenape Prods., Inc., 781 F.2d 999,

1004-1005 (3d Cir. 1986); Suburban Lines, 731 F.2d at 1092-1094.

may exist. As an initial matter, the dispute petitioners

seek to put before the Court is largely academic and

potentially moot for two independent reasons.

First, on May 4, 1998, roughly ten weeks after the

court of appeals issued its judgment order, the Section

10(j) interim injunction about which petitioners com-

plain expired, and petitioners ceased to be subject to its

terms. See p. 9, supra; App. D, infra, 27a. This Court

has repeatedly recognized that, once an interim injunc-

tion expires, any appeal challenging its issuance be-

comes moot:

The decision we are asked to review upheld only the

validity of an injunction, an injunction that expired

by its own terms [long ago]. Any judgment of ours

at this late date “would be wholly ineffectual for

want of a subject matter on which it could operate.

An affirmance would ostensibly require something

to be done which has already taken place. A

reversal would ostensibly avoid an event which had

already passed beyond recall. One would be as vain

as the other. To adjudicate a cause which no longer

exists is a proceeding which this Court uniformly

has declined to entertain.”

Local No. 8-6, Oil Workers Int'l Union v. Missouri, 361

U.S. 363, 371 (1960) (quoting Brownlow v. Schwartz,

261 U.S. 216, 217-218 (1923)); see also University of

Texas v. Camenisch, 451 U.S. 390, 398 (1981) (appeal

challenging standard under which preliminary injunc-

tion was issued is moot where the injunction had been

“fully and irrevocably carried out”).

Second, on June 28, 1997, petitioners and the Union

negotiated a “Reinstatement Agreement” which re-

quires petitioners to reinstate striking employees—

under the same terms as the Section 10(j) injunction—

regardless of the outcome of this litigation. See pp. 7-8.

supra; App. B, infra, 23a (agreement providing that

petitioners will restore “all strikers to their former

positions prior to the strike, as required by the 10(j)

injunction, regardless of the outcome of this litigation”).

That agreement renders the current dispute over the

propriety of the preliminary injunction largely aca-

demic. And it renders further review inappropriate, as

this Court recognized in McLeod v. General Elec. Co.,

385 U.S. 533 (1967) (per curiam). There, as here, the

union and the employer had entered into a new collec-

tive bargaining agreement after the preliminary injunc-

tion had been issued. /d. at 535. There, this Court held

that the new agreement was an intervening event that

rendered further review of the Section 10(j) injunction

inappropriate. See ibid. (“We do not think it appropri-

ate, however, to decide * * * the proper construction

of §10(j)” because “the company and [the union] agreed

upon a three-year collective bargaining agreement to

replace the expired contract.”). The new collective bar-

gaining agreements in this case likewise render further

review inappropriate here.”

3. Even apart from the potential problem of moot-

ness and the academic nature of the dispute, this case

does not present an appropriate vehicle for articulating

a standard to govern issuance of preiiminary relief

under Section 10(j), as the injunction in this case would

have been proper under any standard. Cf. General

In General Electric, this Court vacated the court of appeals’

judgment and remanded the case to the district court to “deter-

mine in the first instance the effect of this supervening event [7.e.,

the new contract] upon the appropriateness of injunctive relief.”

385 U.S. at 535. Here, no remand is required because the injunc-

tion has expired, and the Regional Director has not sought further

interim relief.

Elec., 385 U.S. at 535 (“The controversy over the

proper standard for [Section 10(j)] injunctive relief is

immaterial if such relief is now improper whichever

standard is applied.”).

As discussed above, see pp. 4-7, 10-11, swpra, the

district court applied a two-step analytical framework.

As part of the first step, the court concluded that the

Regional Director had shown “reasonable cause” to

believe a violation had occurred because, among other

things, the Regional Director had articulated a

“substantial and non-frivolous” legal theory in support

of his contention that the Union’s 71-hour extension of

the original strike date was consistent with Section

&(g). See Pet. App. C15-C16, C19-C20, C23, C34.

Indeed, that theory was a direct application of the

Board’s long-standing decision in Bio-Medical

Applications, 240 N.L.R.B. 432 (1979), under which “a

union’s unilateral extension of a strike date within a 12

to 72 hour period does not constitute an unfair labor

practice.” Pet. App. C19-C20. The court’s ruling was

correct. See Lewis v. New Orleans Clerks & Checkers,

724 F.2d 1109, 1116 (5th Cir. 1984) (court “cannot deem

the Regional Director’s legal theory insubstantial or

frivolous” where based on applicable Board precedent).

a. Nonetheless, petitioners argue that, “lilf the

District Court had been free to apply the four-part test

that it customarily would use for injunction cases, the

District Court plainly would have concluded that the

Board’s legal theory was not likely to prevail on the

merits,” and therefore would have declined to issue a

Section 10(j) injunction in this case. See Pet. 12. That

contention lacks merit.

As an initial matter, the “likelihood of success on the

merits” factor as it has been applied in this context does

not materially differ from the “substantial and non-

frivolous” inquiry made by the district court in this |

case. See, e.g., NLRB vy. Electro-Voice, Inc., 83 F.3d |

1559, 1568 (7th Cir. 1996) (“some likelihood of succeed-

ing on the merits” means “a better than negligible

chance of winning”) (internal quotation marks omitted),

cert. denied, 117 S. Ct. 683 (1997); Miller v. California

Pac. Med. Ctr., 19 F.3d 449, 460 (9th Cir. 1994) (en banc)

(Board “can make a threshold showing of likelihood of

success by producing * * * an arguable legal

theory”). Petitioners are thus incorrect to assert that

——

1S Pye v. Sullivan Bros. Printers, Inc., 38 F.3d 58 (1st Cir. 1994)

(Pet. 10 n.5) is not apposite here. In Sullivan Brothers, the court

stated that “[w]hen * * * the interim relief sought by the Board

is essentially the final relief sought, the likelihood of success should

be strong.” 38 F.3d at 638 (internal quotation marks omitted). In

this case, however, the interim relief ordered by the district court

(reinstatement of the strikers) is not essentially the final relief

sought by the General Counsel in the Board proceeding. See App.

A, infra, 13a, 17a (ALJ’s order requires petitioners, among other

things, not only to reinstate the strikers, but also to “make them

whole * * * for any loss of earnings and other benefits”; to

rescind “all unilateral actions * * * found to have been effected in

violation of collective bargaining obligations”; and “[to] make any

employee adversely affected by those actions * * * whole for any

loss of earnings and other benefits”). Moreover, the use of a

“heightened standard” in preliminary injunction cases “must be

supplemented by a further requirement that the effect of the

order, once complied with, cannot be undone.” Tom Doherty

Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 35 (2d Cir.

1995). The First Circuit itself has recognized that a Section 10Q)

reinstatement order does not have such an effect. See Asseo v.

Pan Am. Grain Co., 805 F.2d 23, 28 (1986) (employer’s “burden” of

interim reinstatement “will only last until the Board’s final

determination”).

looking to the Board’s “likelihood of success on the

merits” would have altered the result in this case."

To the extent petitioners argue that the district court

concluded otherwise and ruled that the Regional Direc-

tor in fact was not likely to succeed, see Pet. 11-12,

petitioners misread the district court. As explained

above, the Board has consistently read Section 8(g) as

permitting strike notices to be extended not only by

mutual agreement of the parties, but also by unions

acting unilaterally so long as the extension is brief (less

than 72 hours) and sufficient notice is given. See pp. 5-6

& n.4, 8-9, supra; see also pp. 18-20, infra. Relying on

the district court’s assertion (made from the bench) that

it would not itself have read Section 8(g) that way in

the first instance, petitioners argue that the district

court was unwilling to accept the Board’s theory as a

likely candidate for success. See Pet. 11 (quoting Pet.

App. D56). But the district court’s further discussion

reveals that, even if the district court might have

interpreted Section 8(g) differently absent guidance

from the Board, it nonetheless recognized that (under

Chevron U.S.A. Inc. v. Naturai Resources Defense

Council, Inc., 467 U.S. 837 (1984)) the Board’s interpre-

tation is entitled to deference and must be upheld so

'* Moreover, the “likelihood of success on the merits” inquiry

has been described as an evaluation of “the probability that the

General Counsel will succeed in convincing the NLRB that

someone has in fact violated the labor laws.” Pioneer Press, 881

F.2d at 491 (emphasis added). On that view, it is clear that the

Regional Director was entitled to a Section 10(j) injunction in this

case, for his legal theory in respect to the Section 8(g) issue was

based on a direct application of long-standing Board precedent. Cf.

Danielson, 494 F.2d at 1244 (describing inquiry as whether there is

“some significant possibility that the Board will enter an enforce-

able order”).

long as it constitutes a permissible construction of the

statute; and the district court further noted that the

Board’s construction was strongly supported by Section

&(g)’s legislative history. Pet. App. D56 (“I believe that

[the Board is] entitled to deference because of the

special expertise that they have and because also * * *

the legislative history was entitled to some deference

there as well.”). Thus, far from demonstrating that the

district court believed the Board’s construction of

Section 8(g) to be an unlikely candidate for success, that

court’s comments reveal its unwillingness to overturn

the Board’s permissible construction of the statute.

b. For similar reasons, petitioners’ assertion (Pet.

19) that the Regional Director’s legal theory was

“sroundless”—and thus an improper basis for an in-

junction under any standard—is incorrect. According

to petitioners, Section 8(g) cannot be permissibly con-

strued as permitting unilateral extensions under any

circumstances because “Congress specifically mandated

in Section 8(g) that any extension of a strike notice be

done through the written agreement of both parties.”

Pet. 20.

Petitioners’ construction of Section 8(g) rests on the

mistaken premise that the mechanism for extending

strike notices given by Section 8(g)—joint agreement

—is exclusive. The statute nowhere declares that to be

the case. See Bio-Medical, 240 N.L.R.B. at 434 (“{Tyhe

cited language does not expressly provide that a

written agreement of the parties is the exclusive

manner of extending an initial strike date.”). Instead,

Section 8(g) merely provides that “(t]he notice, once

given, may be extended by the written agreement of

both parties.” The word “may” expresses “ability, com-

petency, liberty, permission, [or] possibility.” Black’s

Law Dictionary 883 (5th ed. 1979). It does not nec-

essarily exclude the possibility that the notice may be

extended by other means as well. Thus, petitioners do

not ask that Section 8(g) be read as written, but rather

ask that it be rewritten to declare that “the notice, once

given, may be extended, but only by the written agree-

ment of both parties.” Even if that is a plausible

construction of Section 8(g), it is not an inevitable one;

consequently, it cannot displace the Board’s contrary

interpretation. See Holly Farms Corp. v. NLRB, 517

U.S. 392, 401 (1996) (rejecting employer’s “plain lan-

guage” argument that offered “a plausible, but not an

inevitable, construction” of statute).’° Indeed, imposing

such a restrictive construction on Section 8(g)—and

thus constricting by implication the conditions under

which employees may strike—would be particularly

inappropriate given the principle that “any limitation

on the employees’ right to strike against [unfair labor

practices] * * * must be * * * explicit and clear.”

15 NLRB v. Washington Heights-West Harlem-Inwood Mental

Health Council, Inc., 897 F.2d 1238 (2d Cir. 1990), discussed by

petitioners at Pet. 26-29, has little bearing on the instant case. As

petitioners acknowledge (Pet. 28), the court there “found it

unnecessary * * * to directly rule on the Board’s construction” of

Section 8(g). See 897 F.2d at 1246-1247 (finding ineffective union’s

attempt to unilaterally extend strike date because it was not “in

written form” and, in any event, “did not provide twelve-hour

supplementary notice of the time of day that the strike would

begin”). Nor is there “significan{ce]” (Pet. 28) to that court’s dis-

cussion of whether certain types of unfair labor practice strikes are

exempt from Section 8(g). The court expressly declined to resolve

that issue, see 897 F.2d at 1248, and, in any event, the Regional

Director did not rely on such a theory in seeking Section 10()) relief

against petitioners in this case.

Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 287

(1956).’°

Moreover, the legislative history of Section 8(g) con-

firms the correctness of the Board’s longstanding con-

struction. Both the Senate and House Reports accom-

panying the bills that became Section 8(g) made it clear

that it was not Congress’s intention that unions “be

required to commence a strike or picketing at the

precise time specified in the notice.” S. Rep. No. 766,

93d Cong., 2d Sess. 4 (1974); H.R. Rep. No. 1051, 93d

Cong., 2d Sess. 5 (1974). To the contrary, the House

and Senate Reports expressly indicate that it would be

permissible for a union to delay its strike by up to 72

hours, so long as “12 hours notice [is] given of the actual

time for commencement of the action.” S. Rep. No. 766,

supra, at 4; H.R. Rep. No. 1051, supra, at 5; see also

Bio-Medical, 240 N.L.R.B. at 484-435 (citing and

quoting additional legislative materials). Petitioners

nowhere dispute that these legislative materials

support the Board’s construction; nor do they offer a

persuasive reason for rejecting the Board’s construc-

6 In addition, because a strike that does not comply with Sec-

tion 8(g) “deprive[s] the strikers of their status as employees,”

Bio-Medical, 240 N.L.R.B. at 435-436, it is reasonable for the

Board to construe the statute in a fashion that avoids such an “un-

warrantedly harsh result,” id. at 436, absent a contrary statutory

directive.

” Petitioners do argue that the Board should not have consulted

the legislative history because Section 8(g) itself is unambiguous

with respect to extensions of strike dates. See Pet. 23. However,

as shown in the text above, see pp. 18-19, swpra, Section 8(g) by no

means declares that agreement of the parties is the exclusive

method for extending a strike notice. And where the statutory

language has an element of ambiguity, an agency’s “consideration

of relevant legislative history” is proper. Mastro Plastics Corp.,

359 U.S. at 287.

tiow, and adopting one that directly conflicts with Sec-

tioi 8(g)’s legislative history.”

ec. Besides, the correctness of the Board’s construc-

tion of Section 8(g) is not properly before this Court.

Where a court passes on a Section 10(j) injunction, the

question is not whether the Board has correctly con-

strued the statute that Congress directed it to adminis-

ter; that question may be determined only on review

of the Board’s final orders. Instead, the question is

whether the Board’s construction is sufficiently plausi-

ble to support interim relief. California Pac. Med. Ctr.,

19 F.3d at 460; see also Silverman v. Major League

Baseball Player Relations Comm., Inc., 67 F.3d 1054,

1059 (2d Cir. 1995) (question is whether Board’s legal

theory is “fatally flawed”); Pet. App. C22-C23; 29

U.S.C. 160(e) and (f); NLRB v. Auciello Iron Works,

Inc., 60 F.3d 24 (1st Cir. 1995), aff'd, 517 U.S. 781 (1996).

For that reason, this Court has in the past expressly

declined to reach the merits of a case on review of a

preliminary injunction. See Camenisch, 451 U.S. at

394-398. Here, there can be no doubt that the Board's

reading of Section 8(g)—given the deference owed to

the Board, and the legislative history’s strong support

18 Petitioners’ further suggestion (Pet. 22) that the Board’s in-

terpretation of Section 8(g) renders the statutory language

“completely superfluous” and “meaningless” is wide of the mark.

The Board’s construction fully preserves mutual written agree-

ment as the basic method by which an initial strike date may be

extended; it merely affords an additional mechanism through

which the strike date may be extended, but only for a very short

period (up to 72 hours) and only when there is sufficient notice to

the employer. If the union desires an extension in excess of 72

hours, it must either obtain the employer’s written consent or, if

consent is withheld, issue a new 10-day strike notice. See

California Nurses Ass’n, 315 N.L.R.B. at 468.

for the Board’s construction—more than meets the

threshold requirement of sufficient plausibility.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

FREDERICK L. FEINSTEIN

General Counsel

LINDA SHER

Associate General Counsel

NORTON J. COME

Deputy Associate General

Counsel

JOHN EMAD ARBAB

Attorney

National Labor Relations Board

DECEMBER 1998

APPENDIX A

[Excerpts from decision of Administrative Law

Judge]

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

CASE 6-CA-27873, ET AL.

BEVERLY HEALTH AND REHABILITATION SERVICES,

INC., ITS OPERATING REGIONAL OFFICES, WHOLLY

OWNED SUBSIDIARIES AND INDIVIDUAL FACILITIES AND

EACH OF THEM, AND/OR ITS WHOLLY OWNED

SUBSIDIARY BEVERLY ENTERPRISES—

PENNSYLVANIA, INC., D/B/A BEVERLY MANOR OF

MONROEVILLE, ET AL.

AND

DISTRICT 1199P, SERVICE EMPLOYEES

INTERNATIONAL UNION, AFL-CIO, CLC, ETAL.

DECISION

Statement of the Case

Robert T. Wallace, Administrative Law Judge:

These cases were tried at 6 locations in Pennsylvania

(Scranton, Franklin, Harrisburg, Pittsburgh, Johns-

town and Reading) on 20 days between July 15, 1996

and May 6, 1997.

(la)

The original charge was filed on February 13, 1996}

by District 1199P, Service Employees International

Union, AFL-CIO, CLC. Thereafter numerous addi-

tional charges? were filed by that union and by two

other SEIU affiliated unions (Local 585 and Local 668).

A Consolidated Complaint against the captioned Re-

spondents issued on May 9 and this was succeeded on

June 19 by an Amended Consolidated Complaint, and

the latter was amended up to and through conclusion of

hearings.°

At issue is whether Respondents violated Sections

8(a)(1), (83) and (5) of the National Labor Relations Act

by unilaterally changing terms and conditions of em-

ployment, by: refusing the Unions’ information re-

quests, refusing to bargain over specific issues, delay-

ing grievance processing, and by-passing the Locals and

dealing directly with employees. Also, there are num-

erous allegations of coercive and discriminatory conduct

1 All dates are in 1996 unless otherwise indicated.

2 6—CA-28061, 28073, 27874, 28046, 28075, 28049, 28074, 27876,

28013, 28050, 27877, 28014, 28015, 27878, 28020, 28054, 27879,

28019, 28047, 27880, 28023, 28045, 27881, 28024, 28057, 27882,

28025, 28052, 27883, 28026, 28051, 27884, 28058, 28076, 27889,

28012, 28059, 27890, 28048, 27891, 27892, 28060, 28077, 27893,

28079, 27894, 28053 and 28081.

3 In its brief General Counsel seeks further to amend the com-

plaint to delete paragraph G6 and to include 4 additional charges.

Respondents opposed the latter. The requested deletion is

granted. Inclusion of additional charges is denied. No adequate

reason is advanced as to why inclusion was not sought before close

of the hearing. Failure to do so precluded Respondents from

responding either at trial or on brief. In any event, procedural

fairness would require reopening for that purpose and I see no

compelling need for the attendant delay in disposition of these

proceedings. United Artists Theater, 277 NLRB 115, 130 (19835).

in violation of Section 8(a)(1) and (3) of the Act, include-

ing failing promptly to reinstate approximately 450

employees who engaged in a three day strike beginning

on April 1.

* * * * *

VII. Sufficiency of Strike Notices Under Section 8&(g)

Section 8(g) was added to the Act in 1974 as part of

the Nonprofit Hospital Amendments that extended

coverage to include health care institutions. It pro-

vides, inter alia, that a union must give 10 days written

notice of a strike against such institutions. The 10-day

notice, according to Congressional Committees sponsor-

ing the legislations,®* was intended to give them suffi-

cient advance notice of a strike or picketing to permit

timely arrangements for continuity of patient care.

In this case, the Unions on March 14 and 15 sent to

administrators of 15 of the involved nursing homes®

and the Federal Mediation and Conciliation Service

notices advising that a strike would occur at those

facilities on March 29. It is conceded that those notices

fully comply with Section 8(g).

On March 27, however, other letters were sent to the

same addressees advising that the Unions had ex-

tended the strike deadline by 72 hours, from 7:00 a.m.

March 29 to 6:00 a.m. Monday, April 1. Respondents

contend that the extension of the strike notices does not

comply with “clear and unambiguous language” in the

63'S. Rept 93-766, 98d Cong., 2d Sess. at 4; H. Rept. 93-1051, 93d

Cong., 2d Sess. at 5.

6 Monroeville, Clarion, Fayette, Franklin, Haida, Meadville,

Meyersdale, Mt. Lebanon, Murray, Richland, William Penn, Read-

ing, Lancaster, Caledonia and Carpenter.

concluding sentence of Section 8(g), to wit: “The notice,

once given, may be extended by the written agreement

of both parties.” Since, admittedly, the Unions’ action in

extending the deadline was taken unilaterally, Respon-

dent’s argue that the subsequent 3-day strike com-

mencing on April 1 was unlawful and, consequently,

that they were under no constraint to take back the

approximate 450 employees who participated—even

assuming the strike was in protest against unfair labor

practices.

That precise issue was presented and resolved in the

“Bio-Medical” case, Greater New Orleans Artificial

Kidney Center. 240 NLRB 482 (1979). There the

Board, after citing the following language in the Con-

gressional Committee Reports:®

It is not the intention of the Committee that a labor

organization shall be required to commence a strike

or picketing at the precise time specified in the

notice; on the other hand, it would be inconsistent

with the Committee’s intent if a labor organization

failed to act within a reasonable time after the time

specified in the notice. Thus, it would be unrea-

sonable, in the Committee’s judgment, if a strike or

picketing commenced more than 72 hours after the

time specified in the notice. In addition, since the

purpose of the notice is to give a health care

institution advance notice of the actual commence-

ment of a strike or picketing, if a labor organization

does not strike at the time specified in the notice, at

least 12 hours notice should be given of the actual

time for commencement of the action .. .

6 Ibid, fn. 63.

went on to adopt the 72-hour window and 12-hour ad-

vance notice rule as a parameter for allowing exten-

sions of strike times previously announced in notices

issued under Section 8(g). In this regard, it held that

the rule established a reasonable “substantial compli-

ance” standard needed to avoid an application of Sec-

tion 8(g) that would produce “an unwarrantedly harsh

result [i.e. depriving strikers of protected status] not

intended by the Congress.”

The Bio-Medical precedent has been uniformly fol-

lowed by the Board since 1979. District 1199-E Na-

tional Union of Hospital and Health Care Employees

(Federal Hill Nursing Center, Inc.), 243 NLRB 23

(1979); Bricklayers & Allied Craftsmen, (Lake Shore

Hospital), 252 NLRB 252 (1980); Nurses Ana (City of

Hope), 315 NLRB 468 (1994).

In light of the clear and eonsistent precedent set by

Bio-Medical and its progeny, any change of inter-

pretation in this area is matter for Board determina-

tion; and Respondents’ recourse is at that level. Jowa

Beef Packers, supra. Applying existing policy, I find

that the extensions of the strike notices satisfied the

requirements of Section 8(g).

VIII. Nature of the Strike

At each of the 15 homes that experienced a strike,

issuance of the strike notice and the decision to strike

were put to separate votes at meetings conducted by

the Union representatives. At these meetings, the

Union representatives enumerated the various per-

ceived unfair labor practices at the facility, and in many

cases, apprised the members of similar unfair labor

practices occurring at other facilities as well. The

Union representatives clearly informed the bargaining

unit members that the vote was being undertaken to

protest Respondents’ unfair labor practices. It was

made clear to members that the strike was not in

furtherance of the Unions’ demands in contract negotia-

tions. The testimony of the Union representatives

conducting the meetings at each facility as well as the

testimony of corroborating employee witnesses attend-

ing meetings at each facility is consistent and credible.

It clearly establishes that the employees voted to strike

in protest against persistent and numerous unfair labor

practices which, on this record are shown to have

occurred at each of the 15 facilities.

Further, in addition to striking over Respondent’s

unfair labor practices in their own facilities, the employ-

ees struck in sympathy over unfair labor practices at

the 5 other facilities operated by Respondents. That

aspect of the strike is also protected under the Act. C.

K. Smith & Co., Inc., 227 NLRB 1061, 1072 (1977),

enf’d. 569 F.2d 162, 165-166 (1st Cir. 1977).

Respondents were well aware the strikers were

protesting unfair labor practices. In their notices, the

Unions characterized the strike as an unfair labor

practice strike; and through picket signs and public

statements, the Unions and striking employees amply

conveyed that they were engaged in an unfair labor

practice strike.*6

66 The local Unions had supported a “Dignity” campaign that

made general contract demands for all nursing home workers in

Pennsylvania, including those employed at Respondent facilities as

well as other facilities owned by entities unrelated to Respondent.

Literature and T-shirts supporting the Dignity campaign had the

logo “one contract, one fight.” The fact that some Union members

wore such T-shirts to Union meetings or even on the picket line,

" an > Eeeors

il lait ald in te els

It is well settled that a strike is considered to be an

unfair labor practice strike as long as one of its objec-

tives is to protest unfair labor practices. Kosher Plaza

Supermarket, 313 NLRB 74, 88 (1993); R & H Coal Co.,

309 NLRB 28 (1992); Northern Wire Corp., 291 NLRB

727, fn. 4 (1988), enfd. 887 F.2d 1313 (7th Cir. 1989).

This being the case, the fact that frustration over the

slow progress of contract negotiations may have played

a part in the strike vote lacks significance.

Having established that that Respondent committed

the numerous and diverse unfair labor practices before

the strike and, further, that the strike was to protest

those unfair labor practices, it follows that Respondents

had an obligation under the Act immediately to rein-

State the strikers to their former positions upon their

unconditional offer to return to work®’ and that their

failure to do so constitutes an additional unfair labor

practice.66 Teledyne Still-Man, 298 NLRB 982, 985

albeit under coats, jackets and rain gear, does not transform what

was clearly an unfair labor practice strike into an economic strike.

*’ Respondents stipulated there was an unconditional offer to

return to work on behalf of every striker. (Tr. 221)

68 At the conclusion of the strike, about 350 former strikers

were completely denied reinstatement and an additional 100 were

not reinstated to their former positions at 15 facilities based upon

Respondents’ claim that it had a right to and did permanently

replace the strikers. After the strike, Respondent continued to

reinstate former strikers only as positions became available, with-

out regard to placing them in their former classification, depart-

ment, number of hours or shift. Typically, a former striker was

first offered reinstatement as a casual (on call) or part-time

employee and only later, if at all, offered a full-time position. As

casual or part-time employees, many former strikers lost their

health insurance and other contractual benefits. In January 1997,

11 months after the three day strike, 66 former strikers still had

not been offered reinstatement in any capacity and 237 former

(1990); American Gypsum Co., 285 NLRB 100 (1987).

It is a violation of Section 8(a)(3) of the Act to fail to

reinstate such strikers. Radio Electric Service Co., 278

NLRB 531, 535 (1986). See also NLRB v. Cast Optics

Corp., 458 F.2d 398, 407-408 (8rd Cir.), cert. denied 409

U.S. 850 (1972); Grondorf, Field, Black & Co., 318

NLRB 996 (1995); Orit Corp., 294 NLRB 695, 699

(1989); Accurate Die Casting Co., 292 NLRB 284 (1989).

* *£ *£ K

Remedy

Having found that the named Respondents have

engaged in unfair labor practices, I find that they must

be ordered to cease and desist and to take certain

affirmative action designed to effectuate the policies of

the Act.

* * * *

Among other things, BHRI and BE-P will be ordered

to offer immediate reinstatement to their former jobs

ali employees who went on strike on April 1 as well as

employees (Sharon Proper, Diane McNulty and Sara

Sharbaugh) found to have been discriminatorily dis-

charged, and to make them and other employees found

to have been wrongfully suspended (Connie Kollar) or

otherwise deprived of income, whole for any loss of

wages and other benefits, computed on a quarterly

basis from date of discharge to date of proper offer of

reinstatement, less any net interim earnings, as pre-

scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),

strikers who were not reinstated to the positions they held before

the strike. In addition, other former strikers were offered rein-

statement to positions that were not their former positions and

which were, for various reasons, unacceptable.

plus interest as computed in New Horizons for the

Retarded, 283 NLRB 1173 (1987).

Because of the Respondents’ wide-ranging and per-

sistent misconduct, demonstrating a general disregard

for the employees’ fundamental rights, I find it neces-

sary to issue a broad Order requiring them to cease and

desist from infringing in any other manner on rights

guaranteed employees by Section 7 of the Act. Hick-

mott Foods, 242 NLRB 1357 (1979).

Disposition

On these findings of fact and conclusions of law and

on the entire record, I issue the following two re-

commended Orders®?

ORDER

(BE-P)

Respondent Beverly Enterprises—Pennsylvania, Inc.

(BE-P), of Leesburg, Virginia, its officers, agents,

successors, and assigns, at the following nursing homes

in Pennsylvania: Beverly Manor of Monroeville, Clarion

Care Center, Fayette Health Care (Uniontown),

Franklin Care Center (Waynesburg), Grandview

Health Care (Oil City), Haida Manor (Hastings), Mead-

ville Care Center, Meyersdale Manor, Richland Manor

(Johnstown), Beverly Manor of Reading (Mt./Penn),

Caledonia Manor (Fayettsville), Camp Hill Care Cen-

ter, Carpenter Care Center (Tunkhannock), York Ter-

race Nursing Center (Pottsville), shall:

69 If no exceptions are filed as provided by Sec. 102.46 of the

Board’s Rules and Regulations, the findings, conclusions, and re-

commended Order shall, as provided in Sec. 102.48 of the Rules, be

adopted by the Board and all objections to them shall be deemed

waived for all purposes.

10a

1. Cease and desist from

(a) Failing to reinstate unfair labor practice strikers

immediately upon receipt of their unconditional offer to

return to work.

(b) Ceasing to allow union representatives access to

the above facilities as required under provisions of a

collective bargaining agreement.

on bulletin boards in those facilities as required under

provisions of a collective bargaining agreement.

(d) Adopting a health insurance plan for employees

without affording to their bargaining representative

adequate prior notice and opportunity for bargaining.

(e) Reducing employees’ hours of work and

overtime opportunities without affording to their

bargaining representative adequate prior notice and

opportunity for bargaining.

(d) Laying off employees without affording to their

bargaining representative adequate prior notice and

opportunity for bargaining.

(e) Eliminating unit positions and assigning unit

work to non-unit employees without affording to their

bargaining representative adequate prior notice and

opportunity for bargaining.

(f) Requiring employees to work overtime and, for

some, eliminating opportunities for voluntary overtime

without affording to their bargaining representative

adequate prior notice and opportunity for bargaining.

ve.

lla

(g) Failing to give employees’ bargaining rep-

resentatives adequate prior notice and opportunity for

bargaining before changing contractual terms and

conditions of employment, including: work schedules

and advance posting requirements with respect there-

to, absentee policies, the period required for doctor

certification of absences for illness, rules relative to

vacation scheduling and duration, and job descriptions.

(h) Failing to honor union bargaining requests.

(i) Bypassing appropriate union representative

and dealing directly with unit employees.

) Failing to comply with union requests for in-

formation relevant and necessary for collective bar-

gaining.

(k) Failing to process grievances in a timely man-

ner.

(1) Engaging in and threatening unlawful surveil-

lance of employees’ union activities.

(m) Threatening employees with discipline and dis-

charge for supporting unions and for complaining about

working conditions.

(n) Threatening to grant wage increases to replace-

ment workers in the event of a strike.

(0) Soliciting and impliedly promising to remedy

employee grievances.

(p) Disparaging employees from engaging in the

protected concerted action of protesting perceived

12a

unfair working conditions by calling them “assholes and

fucking idiots.”

(q) Prohibiting employees from leaving union lit-

erature in the breakroom and prematurely removing it

therefrom and from selling union insignia at offduty

times in the breakroom.

(r) Suspending employee Connie Kollar for urging

other employees to support the union.

(s) Changing the job description of unionized

Licensed Practical Nurses (LPNs) without affording to

their bargaining representative adequate prior notice

and opportunity for bargaining, and for discriminatory

reasons.

(t) Refusing to respond to an information request

of the union relative to the changes in LPN status and

refusing to bargain and dealing directly with LPNs

about the changes.

(u) Changing LPN work and vacation schedules

without affording to their bargaining representative

adequate prior notice and opportunity for bargaining.

(v) Refusing to allow a duly selected employee

union representative to attend an [sic] a labor-manage-

ment meeting.

(w) Reducing the working hours of employee

Beverly Higbee for engaging in union activities.

(x) Discharging LPNs Sharon Proper, Diane

McNulty and Sara Sharbaugh for actively supporting

unionization and to deter others from doing so.

13a

(y) In any other manner interfering with, restrain-

ing, or coercing employees in the exercise of the rights

guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Within 14 days from the date of this Order

offer full reinstatement to their former jobs Sharon

Proper, Diane McNulty and Sara Sharbaugh as well as

all employees who participated in the unfair labor

practice strike which commenced on April 1, 1996

without prejudice to their seniority or any other rights

or privileges previously enjoyed; and make them whole,

with interest, for any loss of earnings and other benefits

suffered as a result of the discrimination against them

in the manner set forth in the Remedy section of the

decision.

(b) On request, rescind all unilateral actions here

found to have been effected in violation of collective

bargaining obligations and make any employee ad-

versely affected by those actions, or by unlawful dis-

criminations, whole for any loss of earnings and other

benefits suffered as a result thereof in the manner set

forth in the Remedy section of the decision.

remove from its files any reference to the unlawful

discharges and the suspension of Connie Kollar and

within 3 days thereafter notify the employees in writing

that this has been done and that the discharges/

suspension will not be used against them in any way.

(d) Preserve and, within 14 days of a request,

make available to the Board or its agents for examina-

l4a

tion and copying, all payroll records, social security

payment records, timecards, personnel records and

reports, and all other records necessary to analyze the

amount =f backpay due under the terms of this Order.

(e) Within 14 days after service by the Region,

post at the nursing homes named above copies of the

attached notice marked “Appendix.””° Copies of the

notice, on forms provided by the Regional Director for

Region 6, after being signed by the Respondent’s

authorized representative, shall be posted by the

Respondent immediately upon receipt and maintained

for 60 consecutive days in conspicuous places including

all places where notices to employees are customarily

posted. Reasonable steps shall be taken by the Respon-

dent to ensure that the notices are not altered, defaced,

or covered by any other material.

(f) | Within 21 days after service by the Region, file

with the Regional Director a sworn certification of a

responsible official on a form provided by the Region

attesting to the steps that the Respondent has taken to

comply.

IT IS FURTHER ORDERED that the consolidated

complaint is dismissed insofar as it alleges violations of

the Act not specifically found in relation to this Respon-

dent

If this Order is enforced by a Judgment of the United States

Court of Appeals, the words in the notice reading “POSTED BY

ORDER OF THE NATIONAL LABOR RELATIONS BOARD”

shall read “POSTED PURSUANT TO A JUDGMENT OF THE

UNITED STATES COURT OF APPEALS ENFORCING AN

ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”

SE ee ee RR REE TT eM ye

15a-

Issues concerning whether remedies should extend

to any or all of the interrelated Beverly companies, in-

cluding Respondents BHRI and BE-P, because of

asserted common responsibility for the unfair labor

practices, are hereby severed and reserved for resolu-

tion by me in a separate supplemental proceeding.

ORDER

(BHRI)

Respondent Beverly Health and Rehabilitation Ser-

vices, Inc. (BHRI), of Ft. Smith, Arkansas, its officers,

agents, successors, and assigns, at the following nursing

homes in Pennsylvania: Mt. Lebanon Manor, Murray

Manor (Murrysville), William Penn (Lewistown), Bev-

erly Manor of Lancaster, Blue Ridge Haven Convale-

scent Center (Camp Hill), and Stroud Manor (Strouds-

burg), shall:

1. Cease and desist from

(a) Failing to reinstate unfair labor practice

strikers immediately upon receipt of their unconditional

offer to return to work.

(b) Ceasing to allow union representatives access to

the above facilities as required under provisions of a

collective bargaining agreement.

notices on bulletin boards in those facilities as required

under provisions of a collective bargaining agreement.

(d) Laying off employees without affording to their

bargaining representative adequate prior notice and

opportunity for bargaining.

16a

(e) Reducing employees’ hours of work and over-

time opportunities without affording to their bargain-

ing representative adequate prior notice and opportu-

nity for bargaining.

(f) Requiring employees to return home and

retrieve their identification badges before permitting

them to work without affording to their bargaining

representative adequate prior notice and opportunity

for bargaining.

(g) Eliminating unit positions and assigning unit

work to non-unit employees without affording to their

bargaining representative adequate prior notice and

opportunity for bargaining.

(h) Engaging in unlawful surveillance of employees’

union activities.

(i) Changing the break schedule of union sup-

porters to inhibit their ability to engage in union

related activities at the facilities.

(j) Coercively soliciting employees to resign from

union membership, interrogating them about their

willingness to strike, and threatening them with re-

duced hours if they did so.

(k) Reducing employees’ hours to discourage them

from continuing to support the union.

(1) In any other manner interfering with, restrain-

ing, or coercing employees in the exercise of the rights

guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary

to effectuate the policies of the Act.

17a

(a) Within 14 days from the date of this Order offer

all employees who participated in the unfair labor prac-

tice strike which commenced on April 1, 1996 full rein-

statement to their former jobs without prejudice to

their seniority or any rights or privileges previously

enjoyed; and make them whole, with interest, for any

loss of earnings and other benefits suffered as a result

of the unlawful discrimination against them in the

manner set forth in the remedy section of the decision.

(b) On request, rescind all unilateral actions here

found to have been effected in violation of collective

bargaining obligations and make any employee ad-

versely affected by those actions, or by unlawful dis-

criminations, whole for any loss of earnings and other

benefits suffered as a result thereof in the manner set

forth in the Remedy section of the decision.

available to the Board or its agents for examination and

copying, all payroll records, social security payment

records, timecards, personnel records and reports, and

all other records necessary to analyze the amount of

backpay due under the terms of this Order.

(d) Within 14 days after service by the Region, post

at the nursing homes named above copies of the

attached notice marked “Appendix.”7! Copies of the

notice, on forms provided by the Regional Director for

Region 6, after being signed by the Respondent’s

" If this Order is enforced by a Judgment of the United States

Court of Appeals, the words in the notice reading “POSTED BY

ORDER OF THE NATIONAL LABOR RELATIONS BOARD”

shall read “POSTED PURSUANT TO A JUDGMENT OF THE

UNITED STATES COURT OF APPEALS ENFORCING AN

ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”

18a

authorized representative, shall be posted by the

Respondent immediately upon receipt and maintained

for 60 consecutive days in conspicuous places including

all places where notices to employees are customarily

posted. Reasonable steps shall be taken by the Re-

spondent to ensure that the notices are not altered,

defaced, or covered by any other material.

(f) Within 21 days after service by the Region, file

with the Regional Director a sworn certification of a

responsible official en a form provided by the Region

attesting to the steps that the Respondent has taken to

comply.

IT IS FURTHER ORDERED that the consolidated

complaint is dismissed insofar as it alleges violations of

the Act not specifically found in relation to this Respon-

dent

Issues concerning whether remedies should extend

to any or all of the interrelated Beverly companies, in-

cluding Respondents BHRI and BE-P, because of

asserted common responsibility for the unfair labor

practices, are hereby severed and reserved for resolu-

tion by me in a separate supplemental proceeding.

Dated, Washington, D.C. November 26, 1997

/s/ ROBERT T. WALLACE

ROBERT T. WALLACE

Administrative Law Judge

19a

APPENDIX B

[Excerpts from Court of Appeals Supplemental

Appendix]

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Docket Nos. 97-3200 AND 97-3357

GERALD KOBELL, REGIONAL DIRECTOR FOR REGION

SIX OF THE NATIONAL LABOR RELATIONS BOARD FOR

AND ON BEHALF OF THE NATIONAL LABOR RELATIONS

BOARD, APPELLEE/CROSS-APPELLANT

VS.

BEVERLY HEALTH AND REHABILITATION SERVICES,

INC., ITS OPERATING REGIONAL OFFICES, WHOLLY

OWNED SUBSIDIARIES AND INDIVIDUAL FACILITIES

AND EACH OF THEM, AND/OR ITS WHOLLY-OWNED

SUBSIDIARY BEVERLY E\NTERPRISES-PENNSYLVANIA,

INC.; D/B/A BEVERLY MANOR OF MONROEVILLE, D/B/A

CLARION CARE CENTER, D/B/A FAYETTE HEALTH

CARE CENTER, D/B/A FRANKLIN CARE CENTER, D/B/A

GRANDVIEW HEALTH CARE, D/B/A HAIDA MANOR,

D/B/A MEADVILLE CARE CENTER, D/B/A MEYERSDALE

MANOR, D/B/A MT. LEBANON CONVALESCENT CENTER,

D/B/A MURRAY MANOR, D/B/A RICHLAND MANOR, D/B/A

WILLIAM PENN NURSING CENTER, D/B/A BEVERLY

MANOR OF READING, 2/B/A BEVERLY MANOR OF

LANCASTER, D/B/A BLUE RIDGE HAVEN

CONVALESCENT CENTER WEST, D/B/A CALEDONIA

MANOR, D/B/A CAMP HILL CARE CENTER, D/B/A

CARPENTER CARE CENTER, D/B/A STROUD MANOR

D/B/A YORK TERRACE NURSING CENTER,

APPELLANTS/CROSS-APPELLEES

Ce ee Se Or es

a iain

PL Saad kalestacchalsh Bt Secu aashie wa aiepaela

- tp es ies

20a

APPEAL FROM THE MEMORANDUM AND ORDER

ISSUED APRIL 14, 1997 BY THE UNITED STATES

DISTRICT COURT FOR THE WESTERN DISTRICT OF

PENNSYLVANIA IN CASE NO. 96-1280

SUPPLEMENTAL APPENDIX

LITTLER, MENDELSON, P.C.

WARREN M. DAVISON

THOMAS P. DOWD

World Trade Center, Suite 1653

Baltimore, Maryland 21202-3905

(410) 528-9545

STIPULATION

Counsel for Appellants/Cross-Appellees’ and counsel

for Appellee/Cross-Appellant hereby enter into the

following Stipulation regarding the documents in

Supplemental Appendix pages SA.4-64:

1. On or about June 28, 1997, Appellants in Docket

Nos. 97-8200 and 97-3357, entered into collective

bargaining agreements with the respective unions who

1 Counsel for the parties in this litigation differ as to whether

Beverly Health and Rehabilitation Services, Inc. et al. should be

identified as a single entity (Appellant/Cross-Appellee) or as a

collection of separate entities (Appellants/Cross-Appellees). For

purposes of this Stipulation, Beverly Health and Rehabilitation

Services, Inc. et al. will be referred to Appellants/Cross-Appellees,

but counsel for the parties agree that this designation is being

made in this Stipulation solely for convenience and does not con-

stitute a waiver by either party of its arguments regarding single

employer status or the correct designation of Beverly Health and

Rehabilitation Services, Inc. et al. in connection with this Appeal

and Cross-Appeal.

6 NS SLE OES ER ie ot Bs) SBE Lica

2la

represented units of employees at those facilities

involved in this case, except for Grandview Healthcare

and the LPN unit at Mt. Lebanon Manor Convalescent

Center.

Ro ee: a oe

5. The document entitled Attachment #8 identified at

Supplemental Appendix page SA.64 is a true and

correct copy of an Agreement entered into between the

Appellants in this litigation and the respective unions

who represent units of employees at the facilities

covered by this appeal. This Agreement provides that

the Grandview Healthcare facility and the LPN unit at

Mt. Lebanon Manor Convalescent Center facilities will

have similar contract terms as set forth in the

Agreement if the unions prevail in the pending Na-

tional Labor Relations Board proceedings. In those

pending proceedings, Appellant withdrew recognition

from the unions representing the service and main-

tenance employees at Grandview Healthcare and repre-

senting the LPN unit at Mt. Lebanon Manor Convales-

cent Center.

22a

IT ISSO STIPULATED.

/s/

JUDITH KATZ by TPD

Ellen Farrell

Judith Katz

Margaret Luke

NATIONAL LABOR RELATIONS BOARD

1099 14th Street, NW

Washington, D.C. 20570-0001

Counsel for Appellee/Cross-Appellant

/s/ WARREN M. DAVISON

WARREN M. DAVISON

LITTLER MENDELSON

A Professional Corporation

World Trade Center, Suite 1653

Baltimore, Maryland 21202-3005

(410) 528-9545

Counsel for Appellants/Cross-Appellees

Dated: August 15, 1997

23a

peo eee ey

REINSTATEMENT AGREEMENT

Notwithstanding the pending litigation relating to the

1996 strike, or the term of this Agreement, the Em-

ployer agrees to complete the reinstatement of all

strikers to their former positions prior to the strike, as

required by the 10(j) injunction, regardless of the

outcome of this litigation. Accordingly, these indivi-

duals will be restored to the status of regular em-

ployees within their respective bargaining units for all

employment purposes. Entitlement to backpay, senior-

ity accrual, or reimbursement for any expenses caused

by a loss of benefit coverage during the period between

the end of the strike and their reinstatement shall be

determined through the pending litigation. If em-

ployees returning to work request different positions

from their former position prior to the strike, granting

such request shall not be considered a violation of this

section.

For the Employer For the Union

Date Date

24a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

PENNSYLVANIA

Civil No. 96-1280

CSRALD KOBELL, REGIONAL DIRECTOR FOR

REGION SIX OF THE NATIONAL LABOR RELATIONS

BOARD FOR AND ON BEHALF OF THE NATIONAL

LABOR RELATIONS BOARD, PETITIONER

BEVERLY HEALTH AND REHABILITATION SERVICES,

INC., ITS OPERATING REGIONAL OFFICES, WHOLLY

OWNED SUBSIDIARIES AND INDIVIDUAL FACILITIES

AND EACH OF THEM, AND/OR ITS WHOLLY-OWNED

SUBSIDIARY BEVERLY ENTERPRISES-PENNSYLVANIA,

INC.; D/B/A BEVERLY MANOR OF MONROEVILLE; D/B/A

CLARION CARE CENTER; D/B/A FAYETTE HEALTH

CARE CENTER; D/B/A FRANKLIN CARE CENTER; D/B/A

GRANDVIEW HEALTH CARE; D/B/A HAIDA MANOR;

p/B/A MEADVILLE CARE CENTER; D/B/A/ MEYERSDALE

MANOR; D/B/A/ MT. LEBANON CONVALESCENT CENTER;

pD/B/A MURRAY MANOR; D/B/A RICHLAND MANOR; D/B/A

WILLIAM PENN NURSING CENTER; D/B/A BEVERLY

MANOR OF READING; D/B/A BEVERLY MANOR OF

LANCASTER; D/B/A BLUE RIDGE HAVEN

CONVALESCENT CENTER WEST; D/B/A CALEDONIA

MANOR; D/B/A CAMP HILL CARE CENTER; D/B/A

CARPENTER CARE CENTER; D/B/A STROUD MANOR;

p/B/A YORK TERRACE NURSING CENTER; RESPONDENT

Consent Order Extending Injunction

AND NOW, this 3d day of October, 1997, upon

consideration of Petitioner’s amended motion to extend

injunction and Beverly Health and Rehabilitation

Services, Inc., et al.’s consent thereto, it is hereby

ORDERED that the motion is granted and the

injunction is extended for a period of 60 days from

October 4, 1997 and will expire on December 4, 1997,

subject to the right of Petitioner to move to extend it as

set forth in the order granting the injunction.

/s/ D. BROOKS SMITH

D. BROOKS SMITH

United States District

Judge

26a

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

PENNSYLVANIA

Civil No. 96-1280

GERALD KOBELL, REGIONAL DIRECTOR FOR

REGION SIX OF THE NATIONAL LABOR RELATIONS

BOARD FOR AND ON BEHALF OF THE NATIONAL

LABOR RELATIONS BOARD, PETITIONER

Vv.

BEVERLY HEALTH AND REHABILITATION SERVICES,

INC., ITS OPERATING REGIONAL OFFICES, WHOLLY

OWNED SUBSIDIARIES AND INDIVIDUAL FACILITIES

AND EACH OF THEM, AND/OR ITS WHOLLY-OWNED

SUBSIDIARY BEVERLY ENTERPRISES-PENNSYLVANIA,

INC.; D/B/A BEVERLY MANOR OF MONROEVILLE; D/B/A

CLARION CARE CENTER; D/B/A FAYETTE HEALTH

CARE CENTER; D/B/A FRANKLIN CARE CENTER; D/B/A

GRANDVIEW HEALTH CARE; D/B/A HAIDA MANOR;

D/B/A MEADVILLE CARE CENTER; D/B/A/ MEYERSDALE

MANOR; D/B/A/ MT. LEBANON CONVALESCENT CENTER;

D/B/A MURRAY MANOR; D/B/A RICHLAND MANOR; D/B/A

WILLIAM PENN NURSING CENTER; D/B/A BEVERLY

MANOR OF READING; D/B/A BEVERLY MANOR OF

LANCASTER; D/B/A BLUE RIDGE HAVEN

CONVALESCENT CENTER WEST; D/B/A CALEDONIA

_ MANOR; D/B/A CAMP HILL CARE CENTER; D/B/A

CARPENTER CARE CENTER; D/B/A STROUD MANOR;

D/B/A YORK TERRACE NURSING CENTER; RESPONDENT

27a

nt Or F er Extending Injunction

AND NOW, this 2nd day of December, 1997, upon

consideration of Petitioner’s motion to ‘urther extend

injunction, it appearing that there is good cause for the

extension, it is hereby ORDERED that the motion is

granted and the injunction is further extended for a

period of six months from December 4, 1997 and will

expire on May 4, 1998, subject to the right of Petitioner

to move to extend it as set forth in the order granting

the injunction.

/s/ D. BROOKS SMITH

D. BROOKS SMITH

United States District

Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.