United States District Court, W.D. Tennessee, Western Division
M. KATHLEEN McKINNEY, Regional Director of Region 15 of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
OZBURN-HESSEY LOGISTICS, LLC, Respondent
For M. Kathleen McKinney, Regional Director of Region 15 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner: Christopher Joseph Roy, William Thomas Hearne, NATIONAL LABOR RELATIONS BOARD, Region 26, Memphis, TN.
For Ozburn-Hessey Logistics, LLC, Respondent: Stephen D. Goodwin, LEAD ATTORNEY, BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, Memphis, TN; Benjamin Henry Bodzy, BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ-Nashville, Nashville, TN.
ORDER GRANTING PETITION FOR TEMPORARY INJUNCTION
JOHN T. FOWLKES, JR., UNITED STATES DISTRICT JUDGE.
Before the Court is M. Kathleen McKinney's, Regional Director of Region 15 of the National Labor Relations Board (the " Board"), petition for a temporary injunction filed on June 13, 2014, pursuant to Section 10(j) of the National Labor Relations Act. (ECF No. 1). On September 10, 2014, Petitioner filed a Memorandum of Points and Authorities in Support of the Petition for injunctive relief. (ECF No. 18). On October 6, 2014, Respondent filed a Brief in Opposition to Injunctive Relief to which Petitioner filed a Reply Brief on October 16, 2014. (ECF No. 22 and ECF No. 24).
Upon consideration of the petition, the parties' briefings, the administrative record, affidavits, exhibits and the entire record, the Court finds the Section 10(j) petition for injunctive relief should be Granted pending a final ruling by the NLRB for the reasons stated below.
I. STATEMENT OF FACTS
The Court adopts its Statement of Facts provided in the recent order entered by the Court on November 20, 2014, denying Respondent Ozburn-Hessey Logistics, LLC's (" OHL") Motion to Dismiss. (ECF No. 29). In summary, the matter concerns alleged violations of the National Labor Relations Act by Respondent OHL to deter its employees from engaging in protected union organizing activities.
Petitioner and Respondent agree that the United Steelworkers Union (" Union") began organizing efforts with OHL employees in 2009. (ECF No. 18, p. 6, ECF No. 22, p. 2). The employees allege OHL committed several substantial and unfair labor practices including surveillance, job reassignment, random discipline, sudden changes in work policies as well as suspension and termination of employees, in violation of Sections 8(a)(1), (3) and (4) of the National Labor Relations Act, 29 U.S.C. § § 158. (Petition, ECF No. 1, ¶ ¶ 7(f)-(x)). Based on the alleged violations, charges were filed by the Union with the NLRB that referenced inter alia, complaints that: 1) Renal Dotson was suspended on October 10, 2012 and fired on October 18, 2012; 2) Jerry Smith was terminated on October 2, 2013 and Jerry Smith, Jr. was terminated on October 31, 2012; 3) Shawn Wade was terminated on May 15, 2013; 4) Reginald Ishmon was terminated on May 17, 2013; 5) Deangelo Walker was terminated on May 22, 2013; 6) Nannette French was terminated on May 23, 2013; 7) Stacey Williams was terminated on June 25, 2013; 8) Jennifer Smith's duties were changed on June 13, 2013; 9) Glenora Whitley has had to submit to drug and alcohol testing since September 2013; and 10) Nathanial Jones was terminated on November 1, 2013. (Petition, ECF No. 1, Memorandum of Points, ECF No. 18, Admin. Hearing Transcript, p. 17).
The alleged NLRA violations were joined into a Sixth Consolidated complaint and heard separately before various Administrative Law Judges. (ECF No. 1-2)(The first case was heard before ALJ George Carson who found unlawful activity occurred; the second case was heard by ALJ John West in July 2010, who also found Section 8(a)(1) violations, leading to the injunction entered by Judge Samuel H. Mays on April 5, 2011. The third charge was heard by ALJ Robert Ringler in October and November 2011, who ruled the discharges were unlawful and the election objections should be dismissed. The fourth case was heard by ALJ Margaret Brakebusch in October and November 2012, who found unlawful activities. However, the case is still pending based on exceptions filed by Respondent.
The Union was certified on May 22, 2013 but rendered invalid by the recent Supreme Court's decision in Noel Canning v. NLRB, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014). (ECF No. 18, pp. 6-7; Joint Exhibits 3-4). A final hearing on the last charges against OHL was held before Administrative Law Judge Keltner Locke on July 25, 2014. (ECF No. 1-2 and Exhibit C). To date, a ruling has not been issued by the Board regarding the instant complaints.
As a result of the Board's issuance of the Sixth consolidated complaint regarding OHL's alleged labor violations, Regional Director McKinney, filed this petition for temporary restraining order arguing that a 10(j) injunction is just and proper, pending a final ruling from the Board. Petitioner asserts that injunctive relief is necessary in order to avoid substantial and irreparable injury to the employees and continued misconduct by OHL. (ECF No. 1, pp. 1-4, 10-11). Respondent insists that injunctive relief is not just and proper in this case because the NLRB waited over one year to file its petition and has failed to show that injunctive relief is necessary to preserve the remedial powers of the Board. (ECF No. 22).
Pursuant to 29 U.S.C. § 160(j), the Board shall have the power to petition for 10(j) temporary injunctive relief in any United States District Court within any district wherein the unfair labor practices are alleged to have occurred or wherein any party resides or transacts business. See Gottfried v. Frankel, 818 F.2d 485, 491-92 (6th Cir. 1987). Personal and subject matter jurisdiction are both " essential element[s] of the jurisdiction of a district . . . court, 'without which the court is 'powerless to proceed to an adjudication.'" Ruhrgas AG. v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) ( quoting Employers Reinsurance Corp. v. Bryant, 299 U.S. 374, 382, 57 S.Ct. 273, 81 L.Ed. 289 (1937).
III. LEGAL STANDARD
Congress afforded § 10(j) injunctive relief under the NLRA to provide interim relief pending the Board's substantive review of alleged unfair labor practices. Congress recognized that " administrative relief is often slow" and temporary relief " may be necessary to preserve the remedial power of the Board." See Kobell v. United Paperworkers Intern. Union, et al., 965 F.2d 1401, 1406 (6th Cir. 1992); Levine v. C & W Mining Co., Inc., 610 F.2d 432, 436 (6th Cir. 1979).
Before a temporary injunction may be issued, a court must find " reasonable cause" to believe that the alleged unfair labor practices have occurred. Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d 26, 30 (6th Cir. 1988); Levine, 610 F.2d at 435. If the court finds reasonable cause exists, then it must examine whether injunctive relief with respect to such practices would be just and proper. See Ahearn v. Jackson Hospital Corp., 351 F.3d 226, 234-35 (6th Cir. 2003), Levine, 610 F.2d at 435; Hooks ex rel NLRB v. OHL, LLC, 775 F.Supp.2d 1029, 1040, (W.D. Tenn. 2011), citing Glasser ex rel NLRB v. ADT Security Services, Inc., 379 Fed.Appx. 483, 485 (6th Cir. 2010); See also 29 U.S.C.A. § 160(j). If the district court answers in the negative to either of these inquiries, then the § 10(j) petition for injunctive relief must be denied. See Fleischut, 859 F.2d at 30; and Ahearn, 351 F.3d at 234. Once the petitioner has established reasonable cause that the alleged violations occurred, the burden then shifts to the respondent to show that it would have acted in the same manner despite the protected activity. Id.
Finally, district courts are not to adjudicate the merits of the unfair labor practice case or resolve factual disputes. See Fleischut, 859 F.2d at 28 and Schaub v. West Mich. Plumbing & Heating, Inc., 250 F.3d 962, 969 (6th Cir. 2001). The question whether a violation of the Act has been committed is a function reserved exclusively to the Board and subject to appellate court review of final orders issued by the NLRB (" Board"). Id. The Court only needs to identify enough evidence as presented by the Petitioner to support its legal theory and would permit a rational trier of fact to rule in favor of the NLRB. Glasser, 379 F.Appx. at 486.
A. Is there Reasonable Cause?
In order to satisfy the reasonable cause standard, the Court must find 1) the Petitioner's legal theory is substantial and 2) that the facts as asserted satisfy that theory. Fleischut, 859 F.2d at 30. The Director has a relatively insubstantial burden to produce some evidence in support of the petition. Gottfried, 818 F.2d at 494. The Director need not convince the court of the validity of the Board's theory of liability as long as the theory is substantial and not frivolous. Id. Therefore, the Director must simply produce some evidence in support of the § 10(j) petition for injunctive relief that establish the unfair labor practices alleged did occur at OHL. Fleischut, 859 F.2d at 30.
Because the burden is relatively insubstantial, courts regularly rely on the administrative record in deciding whether a § 10(j) petition is warranted rather than holding an evidentiary hearing. Hooks v. Ozburn-Hessey Logistics, LLC, 775 F.Supp.2d at 1035 n.1, quoting Glasser v. Heartland-University of Livonia, MI, LLC., 632 F.Supp.2d 659, 666 (E.D. Mich. 2009); NLRB v. Voith Indus. Services, Inc., 551 Fed.Appx. 825, 830 (6th Cir. 2014). See Muffley v. Voith Indus. Services, Inc., 551 Fed.Appx. 825 (6th Cir. 2014). Either direct or circumstantial evidence may be considered in determining the Respondent's motive underlying the conduct. W. Mich. Plumbing, & Heating, 250 F.3d at 970.
1. Are Petitioner's Legal Theories Substantial?
The NLRA, in pertinent part, provides as follows:
Section 8(a) Unfair labor practices by employer. It shall be an unfair labor practice for an employer -
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;
. . .
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization; . . .
(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act.
See Title 29 U.S.C. § § 158(a)(1), (3) and (4).
Petitioner cites numerous violations of Sections 8(a)(1), (3) and (4):
1. Surveillance and threats by management of those engaged in union activities;
2. Ordering employees engaged in distributing of union material to leave the premises.
3. Confiscation and removal of union materials in non-work areas during non-working time;
4. Photographing employees receiving union cards and material;
5. Advising employees to find work elsewhere if they were ...