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McKinney v. Ozburn-Hessey Logistics, LLC

United States District Court, W.D. Tennessee, Western Division

January 29, 2015

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,
v.
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).[1]

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.[2] (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.[3] (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.[4] 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.[5] 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).[6] 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).

II. JURISDICTION

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.

IV. ANALYSIS

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).[7] 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 dissatisfied with their jobs;
6. Pre-textual reasons given by management for discipline, including suspension and termination;
7. Inconsistent enforcement of company policies and rules by management; and
8. More onerous job assignments.[8]

In total, fifteen administrative charges were filed with the NLRB for alleged NLRA violations committed by OHL that led to four separate administrative hearings before the Board. The last hearing, concerning the instant charges, began before ALJ Keltner W. Locke on June 9, 2014 and ended on July 25, 2014.

In summary, the Board has advanced numerous theories of interference with protected pro-union activities. The Court first finds the legal theories as asserted by the Board are substantial and not frivolous. Gottfried, 818 F.2d at 494.

2. Do the Facts Satisfy Petitioner's Legal Theories?

Secondly, the Court must address whether the facts asserted are consistent with and satisfy the legal theories advanced by Petitioner for injunctive relief. See Ahearn v. Jackson Hospital Corp., 351 F.3d at 237; Schaub v. West Mich. Plumbing & Heating, Inc . 250 F.3d at 969.

In order to establish violations of Sections 8(a)(1), (3) and (4), the Board must make a prima facie showing that: 1) there is union or protected activity by the employee(s), 2) the employer was aware of the activity and, 3) the employee's protected activity motivated the adverse employment action. Ahearn v. Jackson Hosp. Corp., 351 F.3d at 238; and Kentucky General, Inc. v. NLRB, 177 F.3d 430, 435 (6th Cir. 1999). The question whether violations of the Act have 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. However, when ruling on a 10(j) petition, the Court only needs to identify enough evidence that supports Petitioner's legal theories. The Court must also find that the evidence would permit a rational trier of fact to rule in its favor. See Glasser, 379 Fed.Appx. at 486. In other words, the undersigned need not adjudicate the merits of any alleged unfair labor practice or resolve factual disputes, but only identify that Petitioner has presented enough evidence to support its legal theories. See Fleischut, 859 F.2d at 28; Schaub v. West Mich. Plumbing & Heating, Inc., 250 F.3d at 969; and Glasser, 379 Fed.Appx. at 486.

To support its legal theories that Respondent has violated Sections 8(a) (1), (3) and (4) by the alleged unlawful labor practices listed above, Petitioner offers evidence as follows:

Events at Yazaki Warehouse on May 14, 2013 (surveillance and drug testing)

Petitioner contends that on May 14, 2013, the same day as the ballot count for the second election that favored union certification, OHL employees Jerry Smith and Glenora Whitley arrived at the Yazaki facility to advise the employees of the election results.[9] (Petitioner's Memorandum of Points and Authorities, ECF No. 18, p. 8; Admin. Hearing Tr. pp. 45, 370, 373). They passed out union information near the employee entrance and later in the parking lot. They never entered the facility. (Id. at pp. 46, 49, 372-73). OHL Operations Supervisor Antonio Goodloe and Operations Manager Margaret Bonner directed both of them to leave the parking lot despite showing their employee badges and being advised by Director of Operations Phil Smith that Jerry Smith and Glenora Whitley were, in fact, OHL employees. (Id. at 51, 54, 2073-74). After the incident, they had trouble speaking with and getting employees to accept union literature and sign the union cards. (Id. at 385). One employee, Luz Balderrama (" Cici") specifically refused to discuss union business or sign the union card because of her supervisor. (Admin. Hearing Tr., p. 412).

Additionally, Whitley testified that because of her union activities, she was subjected to random drug tests, one in September 2013 and again in November 2013 in violation of Section 8(a)(3). (Admin. Hearing Tr. pp. 428-429). Respondent denies that Whitley was drug tested in September and states she suffered no adverse employment action because of the random testing. (ECF No. 22, p. 45).

Supervisor Antonio Goodloe observed Nannette French from his car as she passed out union cards and spoke with employees about membership. (ECF No. 18, pp. 11, 373).[10]

Despite the contradicted testimony, the Court finds sufficient evidence that Respondent interfered with employees' ability to engage in union solicitation, and prevented offsite employees from distributing union literature or visiting the location in order to acquire union support, in violation of Sections 8(a)(1) and (3). Petitioner's legal theories in this regard are substantial and supported by sufficient factual evidence. First Healthcare Corp. v. NLRB, 344 F.3d 523, 541-42 (6th Cir. 2003)(substantial evidence as a whole supported the Board's conclusion that Section 8(a)(1) had been violated by denying offsite employees access to its facilities).

Events on May 15 and 23, 2013 re Shawn Wade (surveillance, termination and removal of union material)

On May 15, 2013, Director of Operations Phil Smith and employee Quinn Farmer, removed pro-union literature from the break rooms at the Yazaki warehouse.[11] Respondent does not deny the claim, but indicates this action was not undertaken with an animus toward union activity as the company forbids employees from distributing any literature on its premises.[12] (ECF No. 22, p. 33). Director Smith testified that he merely cleared copies of the union decision from the break room. (Admin. Hearing. Tr. pp. 1032, 1034, 1051).

Accordingly, Respondent has failed to produce evidence that it did not remove the union materials. Confiscation of any pro-union literature from employee break rooms interferes with an employee's right to distribute union materials during non-work hours in non-work areas in violation of Section 8(a)(1) of the NLRA. Therefore, Petitioner has offered sufficient evidence to support its theory that union materials were removed from non-working locations in violation of Section 8(a)(1).

Also on May 15, 2013, Operations Supervisor Kyle Perkins reportedly observed and took pictures on his cellular telephone of employees signing union cards. (ECF No. 18, pp. 15-17, Admin. Hearing Tr. pp. 540-41). On the same date, employee Shawn Wade received and signed a union card from employee Anita Wells in the parking lot. (ECF No. 18, pp. 37-38). Wade stated that Senior Vice President Randall Coleman observed him sign the card as he passed them near the employee entrance. (Admin. Hearing Tr. pp 867- 870, 870-2, 1072; Exhibit 52).

The next day, Wade was running late causing him to illegally park his car in a " No Parking" area close to the entrance in order to attend the pre-shift meeting. Wade stated that after the meeting, he left the building to move his car to another parking spot and was outside of the building for no more than three minutes. Director of Operations Ken Ball observed Wade leave the building and move his car. (Admin. Hearing Tr. pp. 1859-1861). HR Manager Johnson received the emails about Wade leaving the building and recommended his discharge. (Admin. Hearing Tr. pp. 2449, 2668). Wade was, in fact, discharged. No one discussed the incident with Wade before his termination. (Id. at 881-884, Exhibit 44).

Respondent maintains that it was unaware of Wade's union activities, as he was discharged for violating a well-known and enforced rule that employees were prohibited from leaving the building without authorization. (ECF No. 22, at pp. 37-39). However, there was considerable proof presented that many employees were allowed to leave the building without authorization for short periods of time, and no disciplinary action was taken.

The Court recognizes that the record offers differing accounts of enforcement of Respondent's policy.[13] However, Petitioner has offered sufficient evidence to support its theory that OHL violated Sections 8(a)(1) and (3) in order to discourage union membership.

Events on May 17, 2013 re Reginald Ishmon (discipline, threats of termination and termination)

OHL Reginald Ishmon was hired on as forklift operator at the Yazaki facility for about six months prior to his termination on May 23, 2013. (Admin. Hearing Tr. p. 500). Ishmon had previously signed a union card when Smith and Whitley were at the Yazaki facility handing out information in the parking lot after the union certification vote. (Admin. Hearing Tr., pp. 501-502). Ishmon reported to his lead operator that some pallets had fallen and had been turned upside down upon his return from acquiring a battery for his scan gun. (Id. at 505). Ishmon was ordered to report to HR, give a statement, submit to a drug test, relinquish his work badge and vacate the premises. (Id. at 509-510). He was terminated about an hour after he left the facility that day for failing to report an accident. (Id. at 511). Other OHL employees had reportedly been involved in accidents or damaged goods but continued working for OHL. (Id. at 513-514).

OHL contends that Ishmon was terminated because he failed to report an accident that caused approximately $7, 000 in damages. (Id. at 2642-43). However, Operations Supervisor Margaret Bonner testified that other full and temporary employees had accidents and damaged products, and they were not terminated. [14] (Admin. Hearing Tr., pp. 2039-2040).

That same day, a meeting was held with employees to discuss accidents, damages and building upkeep. Supervisor Margaret Bonner advised the employees that if they were dissatisfied with their employment, they could find new jobs elsewhere, and that they were not members of a union. (ECF No. 18, p. 18, Admin. Hearing Tr. pp. 450, 2067-69).

Petitioner has offered sufficient evidence supporting its theory that employees were wrongfully disciplined and threatened in violation of Sections 8(a)(3).

Events on May 22, 2013 re DeAngelo Walker (termination)

On May 14, 2013, Deangelo Walker had received a union card from Nannette French prior to the start of his shift. He thought that Lisa Bonner, of Human Resources, observed him receive the card. (Admin. Hearing Tr., pp. 486-487, 496). Walker also said that he previously complained to his supervisor that a union was needed because newly-hired workers were paid more than senior employees. (Id. at 451).

On May 22, 2013, DeAngelo Walker was terminated for using his cell phone for five minutes on May 20, 2013. There is proof that several other employees had been issued warnings for having their cell phones on the floor but never before had an employee been terminated. (ECF No. 1, p. 37, ECF No. 18, p. 53, Admin. Hearing Tr. pp. 466-472, 474, 493-94). Respondent argues that Walker was lawfully discharged for talking on his cell phone on the warehouse floor during work time within his ninety-day probationary period. (ECF No. 22, pp. 40-42). OHL also asserts that there was no proof of Walker's alleged union activities. (ECF No. 22, p. 42).

The Court concludes that based on the proximity to Walker's pro-union activity and the various disciplinary measures taken by OHL for cell phone usage, Petitioner has provided sufficient evidence to support its theory of Sections 8(a)(1) and (3) violations.

Events on May 23, 2013 re Nannette French (surveillance and termination)

Employee Nannette French had been working at OHL as a temporary employee since July 12, 2010. French claims that her supervisors Antonio Goodloe and Margaret Bonner observed her signing and distributing union cards with Whitley and Smith on May 14, 2013. (ECF No. 22, p. 60, Admin. Hearing Tr., pp. 291, 298, 302). French was terminated on May 23, 2013 from the Yazaki facility for clocking in one minute late from lunch. (ECF No. 18, p. 61). French said the employee entrance door had been malfunctioning since April 2013. (Admin. Hearing. Tr., pp. 290-91, 322).

Respondent asserts that Nannette French was lawfully discharged for repeated violations of OHL's Attendance and Punctuality policy. (ECF No. 22, p. 15).

The Court finds that Petitioner has offered sufficient evidence to support its legal theory that OHL committed Section 8(a)(1) and (3) violations against French.

Events on June 13, 2013 re Jennifer Smith (adverse employment action)

Jennifer Smith has been an employee with OHL since 2008. Smith became an avid union supporter in 2009, where she spoke with employees about the union and distributed union literature. Smith has also testified in other unfair labor practice hearings regarding the actions of OHL. (ECF No. 18, p. 75). Smith asserts that because of her union activities, she was demoted from an auditor to a picker/packer, a more physically strenuous position. (Id. at 76-77, Admin. Hearing Tr. p. 1202). Smith was also disciplined on August 30, 2013 for inappropriately touching a co-worker, Luz Balderrama while they were in the restroom that day. (Admin. Hearing Tr. pp. 1206, 1224). The write-up regarding the bathroom incident caused her to lose her share and wage increase for that quarter. (Id. at 1226).

Respondent contends that Jennifer Smith was only reassigned based on her job performance and that she was issued a written warning for making physical contact with employees Luz Balderrama and Gladys Dawson in the bathroom on August 30, 2013. (ECF No. 22, pp. 26-28). Further, Respondent asserts there is no evidence that the " picker's" position is more physically onerous than auditing.

The Court only finds sufficient evidence to support Petitioner's theory that Section 8(a)(1), (3) and (4) violations occurred.

Events on June 20, 2013 re Stacey Williams (termination)

Stacey Williams was employed as an operations lead with OHL for five years prior to his termination for unprofessional conduct and insubordination. (ECF No. 18, p. 64-74, Admin. Hearing, Tr. p. 910). Initially, Williams said that he did not support having a union at OHL, and wore a tee-shirt provided by management before the first union election that said " just say no to the Union." (Admin. Hearing Tr. at pp. 914-15). However, in early 2013, Williams received and signed a union card from Jerry Smith. (Admin. Hearing Tr., p. 917). Petitioner asserts that Williams was discharged because of his requests for union representation during his confrontation with management. (ECF No. 18, p. 73).

On June 17, 2013, an incident occurred where Williams was disciplined for inappropriately touching co-workers. He was ordered to go to an office where a reprimand was to be given. Williams insisted on union representation. Ultimately, Williams left the office. He was later terminated for his unprofessional conduct and insubordination. There is evidence in the record that the type of behavior Williams was accused of is commonplace at OHL and other employees similarly hugged but were not disciplined.

Therefore, the Court finds that Petitioner has offered sufficient evidence of its legal theory that Williams' termination may have been related to his union activity and a Section 8(a)(1) and (3) violation.

Events on October 10, 2012 and October 18, 2012 re Renal Dotson (discipline, drug testing and termination)

Renal Dotson was a lead organizer with the union immediately upon his employment with OHL in August 2009. (ECF No. 18, p. 20). Dotson had been discharged, and then reinstated in August 2011 by Board determination for OHL's unfair labor practices. (Admin. Hearing. Tr. Pp. 680-81). On October 10, 2012, Dotson was assisting two fellow employees with moving a pallet. Dotson was waved to the side while on his forklift by Manager Jim Windisch. (Id. at 21). Windisch was struck by the forklift. It is unclear whether Windisch bumped into the forklift or if Dotson caused the forklift to hit him. Dotson was ordered to take a drug test by Human Resources Manager Lisa Johnson. That day, the test was rendered invalid because Dotson had been chewing gum. He was sent by taxi to Concentra for retesting. (ECF No. 22, p. 9 and Admin. Hearing Tr., p. 2521). Dotson reportedly dropped his cup and wasted part of the sample while at Concentra. (Id. at 1685).[15] Dotson returned to OHL where he was ordered to return to Concentra for another test. He refused to return to Concentra. (ECF No. 22, p. 12). Instead, Dotson insisted that OHL send him to another facility for drug testing.[16] Dotson was subsequently terminated for refusing to appear for drug testing. Petitioner notes that Dotson had voluntarily taken a drug test at another facility on October 12th. Also, there were other reputable agencies used by OHL where Dotson could have been sent for testing. Petitioner contends that OHL's suspension and termination of Dotson violated Sections 8(a)(3) and (4).

In response, Respondent asserts that Renal Dotson was lawfully discharged because of insubordination and his failure to submit to a drug test when instructed, based on the October 10, 2012 incident. (ECF No. 22, pp. 7-8).

The Court finds that Petitioner has offered sufficient evidence in support of its legal theories that Section 8(a)(3) and (4) violations occurred.

Events in September and October of 2013 re Jerry Smith and Jerry Smith, Jr. (interference, discipline and termination)

Jerry Smith and his son, Jerry Smith, Jr., are both former employees at OHL who were active union supporters. (ECF No. 18, pp. 87, 99, 102; Admin. Hearing Tr. pp. 34-35). Jerry Smith had been terminated by OHL previously and was reinstated in April 2011 by a prior 10(j) injunction. Smith openly engaged in distribution of union literature and collection of signatures from OHL employees. Upon his return to OHL, Smith continued his union activity. Petitioner contends that a violation of Section 8(a)(1) occurred on September 6, 2013, when Respondent issued Jerry Smith a final warning for placing union materials on break room tables during non-work time. Jerry Smith testified that he was terminated on October 2, 2013 for falsifying his answers on a company questionnaire and after asking for union representation. (ECF No. 18, p. 92, Admin. Hearing Tr. pp. 107, 124-125).

Petitioner contends Smith was discharged on October 2, 2013, for allegedly providing false answers on questionnaires about leaving the warehouse during work time without permission. Respondent counters that Smith distributed union literature on breakroom tables and during work time in violation of company policy. (Admin. Hearing Tr. pp. 89-93, 208-09, ECF No. 22, p. 32, Ex. 3). Further, Respondent asserts that Jerry Smith was lawfully terminated for submitting false statements on the questionnaire, not for leaving the premises without permission. (ECF No. 22, pp. 34-35; Admin. Hearing Tr. pp. 1425-26, 157-58, 160).

Jerry Smith, Jr. was terminated for violating the company's safety policies by failing to wear his seatbelt while operating a forklift. (ECF No. 18, pp. 20-21, Admin. Hearing Tr. pp. 813, 844, Ex. 41). Respondent asserts that after a final written warning, Jerry Smith, Jr. was properly disciplined for failing to wear his seatbelts while operating forklift equipment in accordance with company policies. (ECF No. 22, pp. 29-30). Petitioner contends that both of the Smiths were more harshly disciplined than others who had committed similar infractions because of their union support, in violation of Sections 8(a)(3) and (4).

Upon review of the conflicting evidence regarding the Smiths' terminations, the Court concludes that Petitioner has offered sufficient facts in support of its legal theories that Section 8(a)(1), (3) and (4) violations were committed against both Jerry Smith and Jerry Smith, Jr.

Affidavits

At least seven affidavits of OHL employees were submitted that chronicled many instances of Section 8(a) violations on the part of OHL. These violations include impermissible surveillance, suspensions and terminations, and other discriminate treatment of pro-union employees. The affidavits also provide insight into the chilling effect that the unfair labor practices had on other employees.[17]

" Anti-union motivation may be reasonably inferred from a variety of factors, such as a company's expressed hostility towards unionization together with knowledge of the employees' union activities, proximity in time between the employees' union activities and their discharges, the inconsistences between the proffered reason and other actions of the employer, and disparate treatment of certain employees compared to other employees with similar work records or offenses." Kentucky General, Inc. v. NLRB, 177 F.3d 430, 435-36 (6th Cir. 1999) quoting Hyatt Corp., v. NLRB, 939 F.2d 361, 375 n.7 (6th Cir. 1991). When determining the employer's motive for any adverse employment action, the court may consider whether the petitioner has demonstrated that the employer nevertheless acted on the basis of anti-union animus in violation of the NLRA. See 29 U.S.C.A § 151 et seq .; FiveCAP, Inc. v. NLRB, 294 F.3d 768, (6th Cir. 2002); NLRB v. Wright Line, 662 F.2d 899, 906-07 (1st Cir. 1981)(" with respect to this ultimate question of determining causal link between the bad motive and the discharge, the burden of persuasion remains always with the General Counsel").

In summary, OHL asserts that all of its measures were lawful employment practices or instances where discipline was legitimately exercised. (ECF No. 22). OHL also contends that the Board is not allowed to substitute its business judgment in place of an employer's decision. OHL argues that reasonable cause has not been established under the Wright Line test of " cause and effect" or the nexus between the protected activity and the adverse employment actions. OHL also urges the court to follow other circuits and incorporate traditional equitable criteria in the " just and proper" analysis. (ECF No. 22, pp. 4-5). See Muffley ex rel. NLRB v. Spartan Mining Co, 570 F.3d 534, 542 (4th Cir. 2009); Sharp v. Parents in Community Action, Inc., 172 F.3d 1034 (8th Cir. 1999); NLRB v. Electro-Voice, Inc., 83 F.3d 1559 (7th Cir. 1996), Miller v. California Pacific Medical Center, 19 F.3d 449, 459-60(9th Cir. 1994). However, the Sixth Circuit has clearly spoken on this issue and this Court declines the invitation to follow other circuits. See Ahearn v. Jackson, 351 F.3d at 234; and Glasser v. ADT Sec. Servs., Inc., 379 Fed.Appx. 483, 485 n.2 (6th Cir. 2010)(unpublished) (discusses other circuits). See also, U.S. v. Moody, 206 F.3d 609, 615 (6th Cir. 2000)(citing Salmi v. Secretary of Health and Human Services, 774 F.2d 685, 689 (6th Cir. 1985)).

After examining all of the alleged violations asserted by Petitioner and Respondent's explanations outlined above, and without deciding the merits of the claim, the Court finds Petitioner has met its burden by presenting both direct and circumstantial evidence that OHL committed Section 8(a)(1), (3) and (4) violations. Petitioner has demonstrated that the legal theories supporting its allegations of unfair labor practices by OHL are consistent, substantial and not frivolous. Even in the face of OHL's reasons for taking disciplinary action, it is clear that OHL possesses a strong anti-union animus. This animus appears to be a dominant and motivating factor in OHL's dealings with pro-union employees. Kentucky General Inc., 177 F.3d at 435. See also FiveCAP, Inc. v NLRB., 294 F.3d. 768 (6th Cir. 2002).

The Court also finds that Petitioner has sufficiently satisfied the Wright Line test of cause and effect in this case. Petitioner has established a nexus between the protected activities and the unlawful adverse employment consequences. See NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981). Put another way, if the employees had not involved themselves in union activity, then they would not have been subjected to disciplinary action by OHL, or the disciplinary action would have been far less severe. Therefore, Petitioner has sufficiently alleged enough facts that support its legal theories that Respondent has committed violations of Sections 8(a)(1), (3) and (4) in the record. Accordingly, the Court finds reasonable cause exists to believe that the unfair labor practices alleged by Petitioner may have occurred in this case. Gottfried, 818 F.2d at 493.

B. Is Injunctive Relief Just and Proper?

If the district court finds there is reasonable cause to believe that unfair labor practices occurred, then the court must determine whether temporary relief is " just and proper." Gottfried, 818 F.2d at 493; Levine v. C & W Mining Co., 610 F.2d 432, 435 (6th Cir. 1979). The granting of temporary injunctive relief pending the outcome of an unfair labor practice proceeding under the " just and proper" standard is a matter committed to judicial discretion. Gottfried, 818 F.2d at 494; Kobell v. United Paperworkers Intern. Union, AFL-CIO, CLC, 965 F.2d 1401, 1409 (6th Cir. 1992) and Frankel, 818 F.2d at 494.

In deciding whether to issue the injunctive relief, the court must recognize that " section 10(j) was added to give the Board a means of preserving the status quo pending the completion of its regular procedures." The legal standard is " whether the relief is necessary to return the parties to status quo pending the Board's proceedings in order to protect the Board's remedial powers under the NLRA, whether achieving status quo is possible." Kobell v. United Paperworkers International, 965 F.2d at 1410. However, " the relief to be granted is only that reasonably necessary to preserve the ultimate remedial power of the Board, and is not to be a substitute for the exercise of that power." Gottfried, 818 F.2d at 494, quoting Kobell v. Suburban Lines, Inc., 731 F.2d 1076, 1084 (3rd Cir. 1984); and Kobell v. United Paperworkers Intern. Union, 965 F.2d at 1410.

Petitioner asserts that injunctive relief is just and proper in order to return the employees to the status quo or position they had before the unlawful practices occurred. The affirmative relief of reinstatement of terminated employees is necessary in light of the exceptional circumstances presented in this case. (ECF No. 42, pp. 41-43, 46). Petitioner further argues that an injunction is necessary to prevent irreparable harm and loss of interest in and support for the union by the employees, in light of OHL's unlawful conduct. (Id. at 44).

Respondent contends that injunctive relief is not just and proper in this case because the Board waited over one year after the majority of the alleged misconduct occurred and almost two years after the first alleged unfair labor practice allegation in which to file its petition. (ECF No. 22, pp. 5-6, 53-55). It also asserts that Petitioner had enough information to file a 10(j) petition on May 23, 2013, the date it issued its first complaint. Because of the delay and the passage of time, Respondent argues the status quo that existed prior to the discharges is now unrestorable, thereby precluding the issuance of an injunction. Gottfried v. Frankel, 818 F.2d at 495 citing Solien v. Merchants Home Delivery, Serv. Inc., 557 F.2d 622, 627 (8th Cir. 1977). Alternatively, Respondent asserts that interim relief is unnecessary to preserve the Board's remedial powers in this case, since a final Board order would be just as effective. See Muffley v. Voith Indus. Services, Inc . 551 Fed.Appx. 825, 836 (2014).[18]

Regarding a delay in filing a 10(j) petition for injunctive relief, the Sixth Circuit has explained that rather than considering " the number of days or months which have passed between the issuance of a complaint and the seeking of Section 10(j) relief, . . . the appropriate focus is on whether it is necessary to return the parties to status quo pending the Board's proceedings in order to protect the Board's remedial powers under the NLRA, and whether achieving status quo is possible." See Gottfried v. Frankel, 818 F.2d at 495.

Based on the facts of this case, the Court finds that, even after passage of the amount of time in this instance, the parties, including the terminated employees, must be returned to their former status. The Respondent has taken extreme disciplinary measures against its employees and changed implementation of work policy almost immediately after the union vote was successful. Many of the employees were union supporters. Yet, the record shows that union support at OHL " chilled" following the rash of discipline and terminations. Thus, injunctive relief in this case is just and proper.

For the reasons stated above, the Court finds that the Petitioner has satisfied the relatively insubstantial burden for § 10(j) injunctive relief; and injunctive relief in this instance is necessary. Accordingly, the Court grants Petitioner's request for a temporary injunction and ORDERS that:

1. OHL, its officers, representatives, supervisors, agents, employees, attorneys, and all persons acting on its behalf or in participation with it, are ordered to cease and desist from the following acts and conduct, pending the final disposition of the matters involved herein by the Board:

(a) Engaging in surveillance of employees engaged in union activity;
(b) Unlawfully giving employees the impression that their union activities are under surveillance;
(c) Confiscating and removing pro-union literature or materials from employee break rooms during the work day;
(d) Ordering employees engaged in lawful solicitation and distribution activities to leave OHL's premises;
(e) Threatening employees with reprisals because they engaged in union activity;
(f) Telling employees that they should quit their jobs with OHL and find different jobs if they have complaints or otherwise engage in union activities;
(g) Assigning more onerous and rigorous job duties to employees because of their activities;
(h) Performing drug or alcohol testing on employees because of their union activities;
(i) Disciplining, suspending, discharging or otherwise discriminating against employees because of their union activities;
(j) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act.
2. This Court also ORDERS OHL, its officers, representatives, supervisors, agents, employees, attorneys, and all persons acting on its behalf or in participation with it, to take the following affirmative actions necessary to effectuate the policies of the Act pending the final disposition of the matters involved herein by the Board:
(a) Within five (5) days of the issuance of this Court's Decision and Order, reassign Jennifer Smith to the auditing duties in the Browne Halco accounts;
(b) Within five (5) days of the issuance of this Court's Decision and Order, offer, in writing, Renal Dotson, Jerry Smith, Jr., Shawn Wade, Reginald Ishmon, Deangelo Walker, Nannette French, Stacey Williams, Jerry Smith, and Nathaniel Jones full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and displacing, if necessary, any workers hired, contracted for, or reassigned to replace them;
(c) Within five (5) days of the issuance of this Court's Decision and Order, temporarily expunge the unlawful discipline issued to Renal Dotson, Jerry Smith, Jr., Shawn Wade, Reginald Ishmon, Deangelo Walker, Nannette French, Stacey Williams, Jerry Smith, Jennifer Smith, and Nathaniel Jones and do not rely on those disciplines in issuing any future discipline;
(d) Post copies of this Court's Decision and Order, together with a Spanish translation prepared at Respondent's expense and approved by Petitioner, at OHL's Memphis, Tennessee facilities in all locations where notices to employees are customarily posted, during the Board's administrative proceedings. OHL will maintain those postings free from all obstructions or defacements and will grant agents of the Board reasonable access to OHL's facilities to monitor compliance with the posting requirement; and
(e) Within twenty (20) days of the issuance of this Court's Decision and Order, file with the Court, with a copy sent to Petitioner, a sworn affidavit from a responsible official of OHL setting forth with specificity the manner in which OHL has complied with the terms of the Order, including the exact locations of the documents required to be posted under the Order.
3. That this case shall remain on the docket of this Court and on compliance by OHL with their obligations specified herein, and upon disposition of the matters pending before the Board, the Petitioner shall cause this proceeding to be dismissed.

Therefore, the Court concludes that there is reasonable cause to believe that Ozburn-Hessey Logistics, LLC (" Respondent") has engaged in, and is engaging in, acts and conduct in violation of Sections 8(a)(1), (3) and (4) of the Act, 29 U.S.C. § § 158(a)(1), (3) and (4), within the meaning of Section 2(6) and (7) of the Act, 29 U.S.C. § § 152(6) and (7), and that such acts and conduct will likely be repeated or continued unless enjoined. Therefore, Petitioner's request for a temporary injunction, ECF No. 1, pursuant to Section 10(j) of the NLRA is GRANTED pending a final ruling by the National Labor Relations Board.

IT IS SO ORDERED.


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