National Labor Relations Board v. International Brotherhood of Electrical Workers, Local 98, Afl-Cio

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No.: 06-4124
NATIONAL LABOR RELATIONS BOARD,
Petitioner
v.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
LOCAL 98, AFL-CIO,
Respondent
Application for Enforcement of Order
Issued by the National Labor Relations Board
N.L.R.B. Nos. 4-CC-2214, 4-CC-2244, 4-CB-8348,
4-CC-2240, 4-CB-8300, 4-CC-2246, 4-CC-2248
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 19, 2007
Before: SLOVITER, SMITH, and GARTH, Circuit Judges
(Filed: October 12, 2007)
OPINION

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1 The NLRB’s jurisdiction stems from the National Labor Relations Act,
which empowers the NLRB to “prevent any person from engaging in unfair labor
practices affecting commerce.” 29 U.S.C. § 160(a). This Court also derives its
jurisdiction from the National Labor Relations Act. 29 U.S.C. § 160(e) (“The
Board shall have power to petition any court of appeals of the United States . . . .
Upon the filing of such petition, the court shall . . . have jurisdiction of the
proceeding and of the question determined therein . . .”).
2 The order directed the Union to cease and desist from employing unfair
labor practices as described in the ALJ’s order.
2
SMITH, Circuit Judge.
The National Labor Relations Board (“NLRB”) petitions this Court for
enforcement of its July 30, 2004 order issued against the International Brotherhood
of Electrical Workers, Local 98 (“the Union”). 1 The order affirmed the
determination by an Administrative Law Judge (“ALJ”) that the Union had
committed multiple unfair labor practices under the National Labor Relations Act,
29 U.S.C. § 158 (§§ 8(b)(1)(A), 8(b)(4)(i)(B), and 8(b)(4)(ii)(B) of the Act), by
improperly targeting four employers for using non-union electrical workers at four
job sites.2 The Union contends that the NLRB’s administrative decision is not
supported by substantial evidence and that the nearly two-year delay between the
issuance of the NLRB decision and the petition for enforcement gives rise to a
defense of laches. For the reasons set forth below, we will enforce the NLRB’s
order.

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3
In 1998, the Union targeted four employers, Adams-Bickel, the
Cheltenham School District, the Wohlsen Construction Company (“Wohlsen”),
and the United Parcel Service (“UPS”), in an effort to discourage them from using
non-union electrical services at four job sites. Additionally, the Union, working in
concert with Local 380, began a campaign to organize and represent the employees
of State Electric. The Union’s principal organizer was Timothy Browne and Local
380's counterpart was Kenneth MacDougall.
Browne and MacDougall visited the four job sites throughout 1998 and 1999
and discovered that all four companies employed non-union employees for
electrical work. Browne engaged in various tactics to disrupt the work at these job
sites in an effort to galvanize support for union electrical workers. According to
the NLRB’s order, the Union violated § 8(b)(1)(A) when Browne prevented a State
Electric foreman from performing his work, threatened him, and photographed him
and his co-workers without their permission. The Union violated § 8(b)(4)(ii)(B)
when Brown threatened Adams-Bickel and the Cheltenham School District for
hiring State Electric. The Union violated § 8(b)(1)(A) by blocking ingress and
egress at the Webb Pavilion facility at a Wohlsen construction site and by
threatening a worker who was trying to enter. The Union violated § 8(b)(4)(ii)(B)
by threatening to engage in secondary picketing at UPS. When the Union engaged

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4
in secondary picketing, first at reserved gates with the intent of forcing Wohlsen to
stop the employment of a non-union contractor, and then in order to force UPS to
cease doing business with a non-union contractor, the NLRB found that the Union
had violated § 8(b)(4)(i)(B).
We review decisions of the NLRB for substantial evidence. See N.L.R.B. v.
Pizza Crust Co., 862 F.2d 49, 51 (3d Cir. 1988). We exercise plenary review over
matters of law. See Dorsey Trailers, Inc. v. N.L.R.B., 134 F.3d 125, 129 (3d Cir.
1998). However, the NLRB’s construction of the statutes it administers is
accorded deference. See Greensburg v. Coca-Cola, 40 F.3d 669, 673 (3d Cir.
1994).
The Union first summarily asserts that the NLRB’s administrative decision
is not supported by substantial evidence. We disagree. When the Supreme Court
considered the statutory standard of “substantial evidence” in the context of the
National Labor Relations Act, it defined the standard as “more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Consolidated Edison Co. v. N.L.R.B., 305 U.S.
197, 229 (1938) (internal citations omitted). The Union has not provided any
persuasive argument that the NLRB’s detailed and thorough decision did not meet
the “substantial evidence” standard.

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3 Such an assumption is generous in light of the Sixth Circuit’s observation
that “delays of over two years are not intolerable.” N.L.R.B. v. Michigan Rubber
Products, 738 F.2d 111, 113 (6th Cir. 1984).
5
The Union also asserts that the NLRB is barred by the doctrine of laches
because it did not seek enforcement of the order for nearly two years. Because the
Union fails to satisfy the elements required to assert the defense of laches, we find
that the defense is unavailable.
The elements of the equitable defense of laches are “(1) lack of diligence by
the party against whom the defense is asserted, and (2) prejudice to the party
asserting the defense.” Costello v. U.S., 365 U.S. 265, 282 (1961). These elements
are conjunctive; and because laches is a defense, the burden of establishing both is
on the party asserting the defense. E.E.O.C. v. Great Atlantic & Pacific Tea Co.,
735 F.2d 69, 80 (3d Cir. 1984). Even if we assume arguendo that the two year
delay is a sufficient period to meet the requirement for a “lack of diligence,” 3 the
Union has failed to adequately plead prejudice.
It is not inequitable to enforce the NLRB’s order against the Union because
the enforcement will be neither pointless nor obsolete. Courts have held
enforcement is unnecessary or futile where, for example, the employer has gone
out of business, see Brockway Motor Trucks v. N.L.R.B., 582 F.2d 720, 740 (3d
Cir. 1978); the employer has sold the business to a successor company who has

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independently taken action to correct each of the predecessor company’s
violations, see N.L.R.B. v. Maywood Plant of Grede Plastics, 628 F.2d 1, 7 (D.C.
Cir. 1980); significant time has passed between the violation and enforcement
where the facts on which the order is based are questionable or of no use, see C-B
Buick, Inc. v. N.L.R.B., 506 F.2d 1086, 1096 (3d Cir. 1974); or personnel changes
have eliminated any threat of a recurrent violation, see N.L.R.B. v. Greensboro
News, 843 F.2d 795, 799 (4th Cir. 1988). Unlike these cases, the factual
circumstances surrounding the original dispute between the complainants and the
Union have not changed in any material fashion such that enforcement is obsolete.
Instead, the Union argues only that its compliance with the NLRB’s order
renders enforcement after a two-year delay prejudicial. Mere compliance with an
NLRB order, however, does not “depriv[e] the Board of its opportunity to secure
enforcement.” N.L.R.B. v. Mexia Textile Mills, 339 U.S. 563, 567 (1950). “A
Board order imposes a continuing obligation; and the Board is entitled to have the
resumption of the unfair practice barred by an enforcement decree.” Id. That the
Union has not, to this point, resumed the unfair practices is not a defense. See id.
The Union has not taken any action that could render enforcement of the NLRB
order inequitable. See C-B Buick, 506 F.2d at 1092.
For these reasons, we will enforce the NLRB’s order.

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