National Labor Relations Board v. Southern Bakeries, LLC

Filing 35

MEMORANDUM OPINION AND ORDER denying 26 Motion to Intervene filed by John Hankins. Signed by Honorable Susan O. Hickey on June 23, 2014. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION

M. KATHLEEN MCKINNEY, Regional
Director of Region 15 of the National
Labor Relations Board and on behalf
of the NATIONAL LABOR RELATIONS
BOARD

v.

PLAINTIFF

CIVIL NO. 4:14-cv-4037

SOUTHERN BAKERIES, LLC

DEFENDANT

MEMORANDUM OPINION AND ORDER
Before the Court is a Motion to Intervene (ECF No. 26) filed on behalf of John Hankins.
Plaintiff M. Kathleen McKinney has responded.

(ECF No. 32).

Proposed Respondent

Intervenor John Hankins has replied. The Court finds the matter ripe for consideration.
BACKGROUND
On February 28, 2014, M. Kathleen McKinney (“McKinney”), Regional Director of
Region 15 of the National Labor Relations Board (“the Board”), petitioned this Court for relief
under Section 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j). McKinney seeks
temporary injunctive relief pending the final disposition of a matter before the Board concerning
unfair labor practice charges against Southern Bakeries, LLC (“Southern Bakeries”). In her
petition, McKinney asserts that Southern Bakeries committed various unfair labor practices that
caused employees to withdraw support from the Bakery, Confectionary, Tobacco Workers and
Grain Millers International Union, Local 111 (“BCTGM”). McKinney asks the Court to order

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Southern Bakeries to stop committing the alleged unfair labor practices and to recognize and
bargain in good faith with BCTGM.
After the filing of the Section 10(j) petition, on April 24, 2014, John Hankins filed the
instant motion to intervene. Hankins was the leader of an employee effort to remove BCTGM as
the representative of Southern Bakeries employees. Hankins moves to intervene as a matter of
right and for permissive intervention.
DISCUSSION
1. Intervention as a Matter of Right
Rule 24 provides:
On timely motion, the court must permit anyone to intervene who
. . . claims an interest relating to the property or transaction which
is the subject of the action and is so situated that the disposition of
the action may as a practical matter impair or impede the movant’s
ability to protect that interest, unless existing parties adequately
represent that interest.
Fed. R. Civ. P. 24(a).

The Eighth Circuit has stated that this rule requires one seeking

intervention to file a timely motion to intervene and the motion must satisfy a “tripartite test.”
Mille Lacs Band of Chippewa Indians v. State of Minn., 989 F.2d 994, 997 (8th Cir. 1993). The
Court will first address whether Hankins’s petition is timely. Then, the Court will discuss
whether Hankins’s application for intervention satisfies the tripartite test.
A. Timeliness
McKinney asserts that Hankins intervention is untimely because he waited almost two
months after the 10(j) petition was filed to intervene.

Hankins asserts that his motion to

intervene is timely because no ruling on the merits has been issued, no hearing has been

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scheduled, and no delay will be caused because he does not contemplate the need to file any
additional responses to the petition. 1
Whether a motion to intervene is timely is determined by considering all the
circumstances of the case. Mille, 989 F.2d at 998. In determining timeliness, factors that bear
particular consideration are the reason for the proposed intervenor’s delay in seeking
intervention, how far the litigation has progressed before the motion to intervene is filed, and
how much prejudice the delay in seeking intervention may cause to other parties if intervention
is allowed. Id. However, “[n]o ironclad rules” govern this determination. Id.
In this case, the Court finds that Hankins’s motion to intervene was timely. Hankins filed
his motion before the Court issued any ruling on the merits and before the Court scheduled a
hearing. Further, Hankins’s intervention will not delay the proceedings because he has already
filed a response to the petition. Accordingly, the Court finds that Hankins’s motion was timely.
B. Tripartite Test
In addition to timeliness, Hankins must satisfy a tripartite test: “(1) [he] must have a
recognized interest in the subject matter of the litigation; (2) that interest must be one that might
be impaired by the disposition of the litigation; and (3) the interest must not be adequately
protected by the existing parties.” Id. at 997.

Hankins argues that his motion to intervene

satisfies this test because his statutory right to refrain from union representation is at stake.
McKinney argues that Hankins does not have an interest relating to the subject of this litigation
because the relief she requests is a court order requiring Southern Bakeries to recognize
BCTGM. McKinney asserts that this relief cannot be sought against Hankins because he is only
an employee of Southern Bakeries.

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Hankins filed a response to McKinney’s 10(j) petition the same day he filed his Motion to Intervene. (ECF No.
28).

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The Court finds that Hankins has failed to show a recognized interest in the current
proceedings.

McKinney asks the Court to order Southern Bakeries to recognize BCTGM as the

exclusive bargaining representative of the unit employees at Southern Bakeries. McKinney
additionally asks the Court to order Southern Bakeries to stop committing alleged unfair labor
practices. These remedies cannot be sought against Hankins. Hankins is a single employee 2 of
Southern Bakeries, and the Court cannot order him to stop committing unfair labor practices or
to recognize and bargain with BCTGM. See Edmondson v. State of Neb. ex rel. Meyer, 383 F.2d
123, 127 (8th Cir. 1967) (holding that a proposed defendant intervenor had no interest in the
litigation because the plaintiff was not seeking relief against the intervenor and the disposition of
the issue would not affect the intervenor’s legal interest).
The Court recognizes Hankins’s desire that BCTGM not represent him.

However,

Southern Bakeries refuses to recognize BCTGM and has filed briefs opposing McKinney’s 10(j)
petition.

Thus, Southern Bakeries is representing Hankins’s position in the proceedings. 3

Accordingly, because his motion does not satisfy the tripartite test, Hankins cannot intervene as a
matter of right.
2. Permissive Intervention
Rule 24(b) provides that “[o]n timely motion, the court may permit anyone to intervene
who . . . has a claim or defense that shares with the main action a common question of law or
fact.” Fed. R. Civ. P. 24(b). “The decision to grant or deny a motion for permissive intervention

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Even though Hankins led the effort to remove BCTGM, Hankins presents no evidence that he is authorized to
represent any other employee besides himself.
3
The Court also notes that Hankins testified in proceedings before the ALJ as Southern Bakeries’s witness and his
testimony is part of the administrative record.

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is wholly discretionary.” S.D. ex rel. Barnett v. U.S. Dep’t of Interior, 317 F.3d 783, 787 (8th
Cir. 2003). 4
Hankins asserts that permissive intervention is appropriate because he possesses several
defenses that share a “common question of law or fact” with Southern Bakeries’s defenses. 5
McKinney asserts that Hankins defenses are legally irrelevant because the issue whether loss of
union support is the result of unfair labor practices is not determined by an employee’s state of
mind.
In Master Slack, the National Labor Relations Board set out a four-factor test to
determine whether “the unfair labor practices . . . have caused the employee disaffection [with
the Union] or at least had a meaningful impact in bringing about the disaffection.” Tenneco
Auto., Inc. v. N.L.R.B., 716 F.3d 640, 648 (D.C. Cir. 2013) (citing Master Slack Corp., 271
NLRB 78 (1984)). The four-factor test considers: “(1) the length of time between the unfair
labor practices and the withdrawal of recognition; (2) the nature of the illegal acts, including the
possibility of their detrimental or lasting effect on the employees; (3) any possible tendency to
cause employee disaffection from the union; and (4) the effect of the unlawful conduct on the
employee morale, organizational activities, and membership in the union.” Master Slack, 271
NLRB at 84. If a causal relationship is found between unfair labor practices and the loss of
employee support for a union, the evidence on which an employer has based its withdrawal of
recognition is said to be “tainted,” and the withdrawal is unlawful. In re Miller Waste Mills, Inc.,

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A court also looks to whether the intervention will “unduly delay or prejudice the adjudication of the rights of the
original parties.” Fed. R. Civ. P. 24(b)(3). The Court has already concluded that Hankins’s intervention would not
cause an undue delay or prejudice to the original parties when it addressed intervention by right. Thus, the Court will
not reconsider this factor in its discussion of permissive intervention.
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Specifically, Hankins asserts that his defenses include: “(1) the lack of employee support for Local 111 is not a
harm that justifies a preliminary injunction; (2) the order will impair the employees’ rights under §7 of NLRA, their
constitutional right to free association, and their pecuniary interest; and (3) a final bargaining order will not be
issued in the underlying case because Southern Bakeries[] did not affect or invalidate employee signatures on the
petitions against union representation.”

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334 NLRB 466, 468 (2001), enfd. N.L.R.B. v. Miller Waste Mills, 315 F.3d 951, 956 (8th Cir.
2003), cert. denied 540 U.S. 811 (2003).

“An employer cannot rely on an expression of

disaffection by its employees which is attributable to its own unfair labor practices directed at
undermining support for the union.” Id.
Thus, in addressing McKinney’s petition, the Court’s decision will not be based on
whether a single employee opposes union representation. The Court will consider whether
Southern Bakeries committed unfair labor practices and whether those practices caused the
employees to disavow the union. Therefore, Hankins does not have a common question of law
or fact, and permissive intervention is not warranted in this case.
CONCLUSION
Accordingly, for the reasons set forth above, the Court finds that the Motion to Intervene
filed on behalf of John Hankins should be and hereby is DENIED.
IT IS SO ORDERED, this 23rd day of June, 2014.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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