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October 7, 1985

PETER W. HIRSCH, Regional Director Region Four, National Labor Relations Board and NATIONAL LABOR RELATIONS BOARD, Respondents

The opinion of the court was delivered by: SHAPIRO


 The National Labor Relations Board ("NLRB") has moved for attorneys' fees and expenses under Federal Rule of Civil Procedure 11 on the ground that Petitioners' complaint in Mandamus was filed in bad faith to harass the NLRB.

 Petitioners, Centra, Inc., Central Cartage Company, Central Transport, Inc., and CC Eastern, Inc. ("Centra"), sought injunctive relief to compel respondents Peter Hirsch and the National Labor Relations Board ("NLRB") to postpone the date of an unfair labor practice hearing before an Administrative Law Judge in Case No. 4-CA-14701, now pending before the NLRB, Region Four, from April 15, 1985 to any date after June 1, 1985 and to desist from filing, threatening to file or prosecuting a preliminary injunction under Section 10(j) of the National Labor Relations Act ("NLRA") (29 U.S.C. § 160(j). Jurisdiction was invoked under 28 U.S.C. § 1331, 29 U.S.C. § 141 et seq., the NLRA (29 U.S.C. §§ 151 et seq.) and under 28 U.S.C. § 1361, the Mandamus Act.

 On November 7, 1984, Highway Truck Drivers and Helpers Local Union No. 107 ("Local 107") filed an unfair labor practice charge with the NLRB, Region Four, against petitioner Central Cartage Company for discrimination against its employees in changing its form of operation from company-employed drivers to owner/operators in violation of §§ 8(a)(1) and 8(a)(3) of the NLRA. 29 U.S.C. §§ 158(a)(1) and 158(a)(3). On November 9, 1984, Local 107 amended its charge by adding an allegation that petitioner had refused to bargain with the union in violation of § 8(a)(5) of the NLRA. 29 U.S.C. § 158(a)(5). On November 15, 1984, Board Agent Joan F. Homer advised counsel for petitioner Central Cartage Company that the NLRB was considering seeking temporary relief under Section 10(j) of the NLRA pending the outcome of the unfair labor practice hearing.

 On February 22, 1985, counsel for the NLRB issued a complaint charging unfair labor practices against petitioners Central Cargage Company, Central Transport, Inc. and CC Eastern, Inc. The complaint alleged that all four petitioners constituted a "single employer" and that CC Eastern, Inc. was an "alter ego" of petitioner Central Cartage Company. A hearing was scheduled for March 18, 1985. On February 25, 1985, petitioners claimed that they were unable to prepare adequately for a hearing because of: (a) counsel's inability to investigate and prepare a defense with respect to allegations concerning the "single employer" and "alter ego" issues in time to try the case on March 18, 1985; (b) counsel's inability within that time to prepare adequately a defense with respect to a nationwide program of converting employees to independent owners; and (c) counsel's unavailability during the first three weeks of March. Petitioners requested that the hearing be held after June 1, 1985.

 On February 28, 1985, counsel claimed as an additional ground for postponing the hearing date that their preparation of an answer was impeded by the unavailability of critical witnesses and officers of the petitioners who were participating in collective bargaining negotiations with the International Brotherhood of Teamsters concerning the National Master Freight Agreement. On March 5, 1985 the NLRB rescheduled the hearing from March 18, 1985 to April 15, 1985. Petitioners then filed a request for permission to appeal the Regional Director's ruling with the Executive Secretary of the NLRB; the request was denied on March 27, 1985. On March 24, 1985, the Board filed a petition under Section 10(j) of the NLRA in the United States District Court for the District of New Jersey, the district in which the alleged unfair labor practices occurred, to obtain a temporary order directing the abolition of a discriminatorily-motivated independent contractor system and the reinstatement of employees as drivers pending the outcome of the unfair labor practice hearing. Centra filed this action on March 27, 1985. On April 1, 1985, respondents filed a motion to dismiss the complaint for lack of jurisdiction and sought attorneys' fees under Rule 11.

 Centra's complaint in mandamus claimed that the NLRB's failure to grant petitioners a postponement of the hearing date until June 1, 1985 or thereafter denied them their constitutional right to due process of law. They also claimed that the NLRB retaliated against them in seeking injunctive relief pending the hearing. They requested that this court direct the NLRB to postpone the hearing until after June 1, 1985 and to cease and desist from filing a preliminary injunction under Section 10(j) of the NLRA.

 Following a hearing on April 1, 1985, the court denied petitioners preliminary injunctive relief and dismissed their complaint in mandamus for lack of jurisdiction. The court deferred consideration of the NLRB Rule 11 request for attorneys' fees "to allow petitioners the maximum time to prepare for the unfair labor practice hearing scheduled to begin on April 15." ( Memorandum and Order of April 11, 1985, 606 F. Supp. at 535).

 Subsequent to the court's decision, the parties to the labor dispute entered into a non-Board settlement that provided for recognition of the Highway Truck Drivers and Helpers Local Union No. 107 by Centra and reinstatement of certain individuals with backpay. The Union submitted a request to withdraw the unfair labor practices charge and the Board's Regional Director for its Fourth Region issued an order approving withdrawal of the charge and dismissing the complaint. The Section 10(j) proceedings in the New Jersey District Court were also terminated. Respondents have now renewed their motion for attorneys' fees.

 The 1983 amendments to Fed.R.Civ.P. 11 provide in part:

The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purposes, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation . . . . If a pleading motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper including a reasonable attorney's fee.

 Applying this standard to petitioners' conduct, it is clear that Rule 11 has been violated. Petitioners' counsel in this case must have realized that this court lacked jurisdiction of their complaint. Jurisdiction under the Mandamus Act, 28 U.S.C. § 1361, is very narrow in scope. An action in mandamus lies only where the defendant owes a clear, ministerial and non-discretionary duty. "An act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt." Richardson v. United States, 465 F.2d 844, 849 (3d Cir. 1972) (en banc), rev'd. on other grounds, 418 U.S. 166, 41 L. Ed. 2d 678, 94 S. Ct. 2940 (1974). The act of setting a hearing date is in its very nature discretionary. The court has previously stated, "a court may exercise its power to issue a mandamus only when official conduct has gone far beyond any reasonable exercise of discretion . . . . In this instance, the NLRB's action cannot be characterized as arbitrary or capricious; it can only be characterized as reasonable." ( Memorandum and Order of April 11, 1985, 606 F. ...

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