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In re Sound Radio Inc

argued: June 26, 1990.

DUER SPRING & MANUFACTURING COMPANY, INC., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF LABOR AND INDUSTRY, OFFICE OF EMPLOYMENT SECURITY, AND HARRIS WOFFORD, SECRETARY OF THE DEPARTMENT OF LABOR AND INDUSTRY AND UNITED STEELWORKERS OF AMERICA AFL-CIO-CLC, RICHARD A. BERNER AND MARK TRIMMER, (INTERVENORS IN DISTRICT COURT)



On Appeal from the United States District Court for the Western District of Pennsylvania; D.C. Civil No. 90-00462.

Sloviter and Mansmann, Circuit Judges and Fullam, District Judge.*fn*

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Circuit Judge.

On this appeal from the district court's denial of plaintiff Duer Spring & Manufacturing Company's motion for a preliminary injunction, we must decide whether Duer Spring demonstrated a significant likelihood that it would succeed on the merits in proving that Pennsylvania's unemployment compensation law is pre-empted by the National Labor Relations Act (NLRA).

We have jurisdiction from this order pursuant to 28 U.S.C. § 1292(a)(1), which permits immediate appeals from interlocutory orders refusing injunctions.

I. Facts

The collective bargaining agreement between the United Steelworkers of America Local 1504 and Duer Spring expired on October 19, 1989. Duer Spring offered work to the employees under the terms and conditions of the pre-existing contract. The employees refused and initiated a work stoppage that continued until January 18, 1990, when the union made a written offer to Duer Spring to return to work on January 22 under the terms and conditions of the pre-existing contract and offering to provide a 72 hour notification before any new work stoppage. Duer Spring refused. The union made a second offer on January 23, 1990, extending the notice it would provide to five days. Duer Spring once again refused, and the union instructed its members to apply for unemployment compensation benefits to the Office of Employment Security of the Pennsylvania Department of Labor and Industry (Department).

The Department determined that the employees were entitled to benefits beginning on January 22, 1990 because at that time, when Duer Spring refused the union's offer to return to work under the pre-existing contract, it became responsible for initiating a constructive lockout. Under Pennsylvania law, a worker is entitled to unemployment benefits for any week in which his or her unemployment is due to a lock-out. 43 Pa.Cons.Stat.Ann. § 802(d) (Purdon 1964).

Duer Spring filed a complaint in federal court against the Department and Harris Wofford, Secretary of the Department of Labor, asking for a declaration that the relevant Pennsylvania statute was pre-empted by the National Labor Relations Act (NLRA) and the Supremacy Clause of the Constitution and asking for injunctive relief to prevent the state from paying unemployment benefits to the workers. App. at 3. The United Steelworkers of America, AFL-CIO-CLC filed a motion to intervene, which was subsequently granted by the district court.

After hearing legal argument on Duer Spring's motion for a temporary restraining order and preliminary injunction, the district court declined to hold an evidentiary hearing and denied Duer Spring's motion for a preliminary injunction on the ground that it had not established the required likelihood of success on the merits. Plaintiff appeals. We expedited the appeal, and listed the matter for oral argument. We review a district court's denial of a motion for a preliminary injunction for abuse of discretion or an error of law. Kennecott Corp. v. Smith, 637 F.2d 181, 187 (3d Cir. 1980); Hohe v. Casey, 868 F.2d 69 (3d Cir.), cert. denied, 493 U.S. 848, 110 S. Ct. 144, 107 L. Ed. 2d 102 (1989). "Because the preliminary injunction in this case rested on the district court's decision [concerning the constitutionality of a classification], a decision that did not turn on any factfinding, we consider here whether the district court committed an error of law. On questions of law, our scope of review is plenary." Tustin v. Heckler, 749 F.2d 1055, 1060 (3d Cir. 1984).

II. Discussion

The NLRA contains no statutory pre-emption provision. As in pre-emption analysis generally, "'[the] purpose of Congress is the ultimate touchstone.'" Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 747, 85 L. Ed. 2d 728, 105 S. Ct. 2380 (1985) (quoting Malone v. White Motor Corp., 435 U.S. 497, 504, 55 L. Ed. 2d 443, 98 S. Ct. 1185 (1978)).

There are two distinct NLRA pre-emption principles. One, articulated in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773 (1959)(denominated the Garmon rule), protects the primary jurisdiction of the NLRB to determine what conduct is either protected or prohibited by the NLRA. That principle is not implicated here, because there is no claim that Pennsylvania has sought to regulate or ...


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