The degree of impairment that must be present to warrant injunctive relief under § 10(j) is not spelled out in the case law. But the analysis underlying a determination of whether granting § 10(j) relief is appropriate begins with a consideration of the nature of the alleged unfair labor practices and their impact upon the collective bargaining process. 904 F.2d at 878. This factual inquiry focuses upon "the likelihood of harm to the bargaining process in the interim." Wellington Hall, 651 F.2d at 907. "Unless there are circumstances, like the size, intimacy, and longevity of the bargaining unit, which indicate that the bargaining process will not be harmed, courts must be deferential to the Board's determination that the integrity of the process needs interim protection." 904 F.2d at 879 n.7.
The "likelihood of harm to the bargaining process" means that it is reasonable to expect under the facts of the case that there will be some adverse impact upon the process as a result of alleged unfair labor practices. Hartz Mountain, 519 F.2d at 142 (judicial action warranted under § 10(j) must be determined on a case by case basis). For example, in Wellington Hall, 651 F.2d at 907, the court found that the discharge of eight employees in a small bargaining unit would in "all likelihood" undermine union support at a critical stage of the bargaining process. So too, in Pascarell, 904 F.2d at 880, the court reversed the district court's denial of interim relief finding that the discharge of four members of the bargaining committee of a recently certified union would jeopardize the union's ability to remain stalwart during the pendency of the administrative proceedings. Accordingly, the interim relief available under § 10(j) is not limited to those instances where the collective bargaining process will be completely frustrated or defeated by the alleged unfair labor practices.
Third Circuit jurisprudence nonetheless cautions that the remedial relief available under § 10(j) is not always appropriate. If the harm from the alleged unfair labor practices, while theoretically damaging to the collective bargaining process, is in reality either of minimal consequence or outweighed by the resulting harm to the integrity of existing labor agreements, interim relief should be denied. For example, in Suburban Lines, 731 F.2d at 1076, the court recognized that § 10(j) relief may not be proper if the alleged unfair labor practice is against an established, "small and intimate" bargaining unit. In such a case, "if the alleged retaliation is against an established, 'small and intimate' bargaining unit, improper attempts by management to impair the collective bargaining process will have minimal 'chilling' effect because the employees will, most likely, be fully aware of their rights under the NLRA." 904 F.2d 874 at 879 (citing 731 F.2d 1076 at 1093)(emphasis added). In Lenape Products, 781 F.2d at 999, the harm to the bargaining process was illusory because management was unaware of the organizational efforts of the employees and the discharge of certain individuals could not be interpreted by the employees as retaliation against union activity. See also 904 F.2d at 880 discussing Lenape Products.
In Hartz Mountain, 519 F.2d at 138, a § 10(j) injunction was reversed because the injunction actually did more harm than good to the collective bargaining process. There, the unfair labor practice was filed by a rejected union after the employer subsequently recognized another union. The injunction restrained the employer from giving effect to the existing collective bargaining agreement which provided health and welfare benefits for the employees. The circuit court recognized that the temporary relief issued by the district court served to protect the rejected union against possible further erosion of employee support and insure that the competition between the labor unions would be fair. Nevertheless, it reversed the injunction, reasoning that the more important public interest was to insure the functioning of the existing collective bargaining agreement and the provision of the benefits it guaranteed. 519 F.2d at 142.
Beverly contends that this court should apply traditional equitable considerations in ruling upon the Board's request for § 10(j) injunctive relief, and follow the lead of several sister circuits that have abandoned the reasonable cause/just and proper inquiry. See Pye v. Sullivan Bros., 38 F.3d 58 (1st Cir. 1994); Miller v. California Pac. Medical Center, 19 F.3d 449, 458 (9th Cir. 1994)(en banc); and Kinney v. Pioneer Press, 881 F.2d 485 (7th Cir. 1989). My reading of Third Circuit authority fails to reveal any inclination to abandon the reasonable cause/just and proper inquiry. In Suburban Lines, 731 F.2d at 1078, the court specifically noted that interim relief under § 10(j) may be granted "without the showing of irreparable harm and a likelihood of success on the merits, which are the ordinary requisites...." Judge Aldisert's concurrence in Suburban Lines confirms that the Third Circuit's analysis of the just and proper prong in a § 10(j) proceeding is distinguishable "from a request for a mine-run preliminary injunction [in] that the Regional Director, as the plaintiff, has a rather low threshold to meet his or her burden of proof." 731 F.2d at 1095. As a district court, I am not free to follow the lead of other courts of appeal when their jurisprudence on a point is at variance with Third Circuit decisions. Because I conclude that the reasonable cause/just and proper inquiry is alive and well in this circuit, I decline Beverly's invitation to replace it with traditional equity principles.
VI. Application of the Just and Proper Prong
As noted above, the "critical determination is whether, absent an injunction, the Board's ability to facilitate peaceful management-labor negotiation will be impaired." 904 F.2d at 879. I am satisfied that there is sufficient evidence to demonstrate that, without the issuance of an injunction, the Board's ultimate remedial powers may be frustrated. That, I conclude, constitutes the requisite impairment.
Beverly's alleged unfair labor practices have been selectively geared to destroy or at least impede the communication network among union members. By removing the bulletin boards and returning employees to different jobs and different shifts, Beverly has forced the union to recompose its infrastructure at each facility. Beverly's actions have prolonged the amount of time necessary to disseminate information, and have tended to demoralize the union ranks and impede whatever collective bargaining has occurred.
The weakening of the communication network has had a substantial impact upon the morale of the union members. The pendency of six decertification petitions is persuasive evidence of this. The decertification petitions are significant because they have been filed at some of the nursing facilities with considerable longevity among employees and with traditionally strong union support. If decertification proceeds, the Board's ability to remedy any unfair labor practices may be completely undermined simply due to the nonunion status of these former union strongholds.
Accordingly, I conclude that interim relief under § 10(j) should be granted.
The Board seeks a blanket injunction against all twenty Beverly nursing homes named in this suit. The Board asserts that such relief is appropriate because these twenty nursing home facilities constitute a "single-employer" under the Act. Dkt.no. 82, at 27. The Board submits that application of the single-employer theory to several entities in a § 10(j) injunction proceeding has been upheld by the Third Circuit. See Eisenberg v. Holland Rantos Co., 583 F.2d 100 (3d Cir. 1978). Beverly contends that a blanket injunction should not issue because the "'single employer' doctrine applies in situations where two entities are performing the same function, but one has a collective bargaining relationship and the other does not." Dkt.no. 85, at 53. Beverly points out that there is no separate unrepresented entity in this case.
A "single employer" "exists where two nominally separate entities are actually part of a single integrated enterprise so that, for all purposes, there is in fact only a 'single employer.'" NLRB v. Browning-Ferris Industries, Etc., 691 F.2d 1117, 1122 (3d Cir. 1982). This doctrine "is relevant to the determination that 'separate corporations are not what they appear to be, that in truth they are but divisions or departments of a single enterprise.'" Id. The determination of whether two or more business entities are sufficiently integrated to warrant unitary treatment requires consideration of four factors: (1) functional integration of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership. Id.
One of the strongest indicators that the twenty nursing facilities are a single employer was Beverly's inclusion of each of the twenty nursing facilities as a party plaintiff in the Johnstown civil action initiated in an effort to stop the strike which commenced on April 1, 1996. See Beverly Enterprises - Pennsylvania, Inc., et. al. v. District 1199P, Service Employees International Union, AFL-CIO et. al., Civil Action no. 96-64J. Beverly owns each of the twenty facilities and Wayne Chapman, Beverly's vice-president of operations for the central and eastern part of Pennsylvania and New Jersey, has total operational responsibility for these facilities. Dkt.no. 79, at 261-62. Mr. Chapman also had a hand in the contract negotiations for each of these facilities. Dkt.no. 79, at 267-68. Once the contracts at these twenty facilities expired, Mr. Chapman issued certain communications to the various facilities regarding the necessity of observing specific provisions in the expired contracts. See pl.exh. 2, 32.
These facts support the Board's assertion that the twenty nursing facilities constitute a single employer. The facilities, though managed separately at each site, are integrated in their overall management and labor relations. Their common ownership serves as a cohesive force is presenting a unitary opponent to the unions. I conclude that treatment of Beverly as a single employer is appropriate to achieve and enforce the remedial relief warranted under § 10(j).
VIII. Appropriate Interim Relief
Where interim relief is appropriate under § 10(j), the relief that is granted should be based on a case by case determination of "what judicial action will be in the public interest." 731 F.2d at 1096 (J. Aldisert concurring)(citing Hartz Mountain, 519 F.2d at 142). Only that relief "reasonably necessary to preserve the ultimate remedial power of the Board" should be granted; § 10(j) should not become the normal method for resolving labor disputes. 904 F.2d at 1091. Furthermore, any injunctive relief warranted under § 10(j) "should include an explicit time limitation, not longer than six months, on the restraint it imposes." Hartz Mountain, 519 F.2d at 144.
As indicated in section VI, relief is appropriate in light of the damage to the union's communication network at the various facilities. The most effective way of restoring that communication network is to reinstate the employees in the positions they held prior to the April 1, 1996 strike, and to return the bulletin boards at each facility.
Although the reinstatement of these employees is likely to be disruptive for Beverly, it should be no more disruptive than the original replacement of these workers after the strike. Third Circuit law instructs that "concern about protecting the employer from the harm from an injunction in the employee reinstatement context" is misplaced. Eisenberg, 651 F.2d 902 at 906. The appropriate focus is upon "the likelihood of harm to the bargaining process in the interim." Id., at 907. In the absence of full reinstatement, the communication network of the unions at some of the facilities may be nonexistent when final adjudication by the Board is issued. By that time, the remedial power of the Board would be exercised too late.
AND NOW, this 4th day of April, 1997, consistent with the foregoing Memorandum, it is hereby
ORDERED and DIRECTED that Petition for Injunction Under § 10(j), docket no. 1, is GRANTED. Defendants, its officers, representatives, agents, servants and employees are directed to reinstate and maintain a bulletin board at each of the health care facilities for the use of the union personnel. Access to the union bulletin boards shall be made available forthwith, and in no event later than April 11, 1997. It is further ORDERED that defendants, its officers, representatives, agents, servants and employees shall 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, including reinstatement to their former scheduled shifts, hours of work and work stations, or, if these former positions no longer exist, to substantially equivalent positions, displacing, if necessary, any employees hired to replace said employees. Reinstatement shall commence forthwith, and be completed within thirty (30) days, that is on or before May 5, 1997. It is further
ORDERED that this case shall remain on the docket of this Court and, on compliance by respondent with its obligations undertaken hereto and upon disposition of the matters pending before the Board, the Petitioner shall cause this proceeding to be dismissed.
This Order shall expire six months from the date of its issuance, provided however, that Petitioner may, upon motion, request a thirty (30) day extension of this Order if it appears that the decision of the Board's administrative law judge on the underlying unfair labor practice complaint in NLRB cases 6-CA-27873, et al., is imminent. Provided further, that after the issuance of said decision of the administrative law judge, upon motion of Petitioner, this Order may be extended, pending the Board's final decision, for an additional period not to exceed six months; provided further, that Petitioner may, upon motion, request an additional thirty (30) day extension of this Order if it appears that the final decision of the Board on the underlying unfair labor practice complaint is imminent.
BY THE COURT,
D. Brooks Smith
United States District Judge