Frankl v. Adams & Associates

Filing 32

AMENDED ORDER signed by Judge Kimberly J. Mueller on 3/18/15 amending the 2/10/15 27 Order. (Manzer, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH F. FRANKL, Regional Director
of Region 20 of the National Labor
Relations Board, for and on behalf of the
NATIONAL LABOR RELATIONS
BOARD,

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Petitioner,

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No. 2:14-cv-02766-KJM-EFB

ORDER AMENDING ORDER FILED
FEBRUARY 10, 2015

v.
ADAMS & ASSOCIATES, INC.,

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Respondent.

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This matter is before the court on the motion to amend by petitioner Joseph F.

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Frankl, Regional Director of Region 20 of the National Labor Relations Board (“NLRB” or

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“Board”). (ECF No. 29.) Petitioner seeks to amend this court’s February 10, 2015 order. (Id.)

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Respondent Adams & Associates, Inc. (“Adams” or “respondent”) opposes the motion. (ECF No.

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31.) The court found the motion appropriate for decision without oral argument. Fed. R. Civ. P.

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78; L.R. 230(g). As explained below, the court GRANTS the motion.

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I.

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BACKGROUND
On November 25, 2014, petitioner moved for an injunction under section 10(j) of

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the National Labor Relations Act (“NLRA”), 29 U.S.C. § 160(j), contending respondent had

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engaged in unfair labor practices in violation of the NLRA. (ECF No. 1.) After thorough
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briefing and oral argument, the court granted petitioner’s motion on February 10, 2015. (ECF

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No. 27.) In granting petitioner’s motion for injunctive relief, the court ordered respondent to

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offer Genesther Taylor reinstatement to her job position and to permit her access to the

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Sacramento Job Corps Center for the purpose of representing union members in union-related

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matters. (Id. at 15–16.)

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Petitioner now moves to amend that order to include the following: “that pending

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the final disposition of the matters involved now pending before the Board, [r]espondent is

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ordered to cease and desist from . . .”

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a) Refusing to hire Genesther Taylor or other bargaining unit
employees of predecessor employer Horizons because of their
union support or affiliation;

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b) Refusing to permit Genesther Taylor or other Union representatives
access to the Center for the purpose of collective bargaining; [and]

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c) In any like or related manner interfering with, restraining or
coercing employees in the exercise of their Section 7 rights.

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(ECF No. 29 at 2.)

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Respondent opposes the motion, arguing there is “no reasonable justification for

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[petitioner’s] unnecessary and punitive request.” (ECF No. 31 at 1.)

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II.

LEGAL STANDARD

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Federal Rule of Civil Procedure 60(a) provides: “The court may correct . . . a

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mistake arising from oversight or omission whenever one is found in a[n] . . . order . . . . The

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court may do so on motion or on its own, with or without notice.” This court “may properly

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invoke Rule 60(a) to make a[n] [order] reflect the actual intentions and necessary implications of

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the court’s decision.” Robi v. Five Platters, Inc., 918 F.2d 1439, 1445 (9th Cir. 1990). In ruling

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on such a motion, district courts are afforded “wide latitude,” and the rulings are reviewed under

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the “abuse of discretion” standard. Id.

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III.

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DISCUSSION
As noted above, petitioner asks this court to amend its February 10, 2015 order to

“include cease and desist provisions that would restrain [r]espondent from: 1) refusing to hire
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Genesther Taylor or other bargaining unit employees of predecessor employer Horizons because

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of their union support or affiliation; 2) refusing to permit Genesther Taylor or other Union

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representatives access to the Center for the purpose of collective bargaining; and 3) in any like or

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related manner interfering with, restraining or coercing employees in the exercise of their Section

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7 rights.” (ECF No. 29-1 at 3.) Petitioner reasons the “omission of these cease and desist

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provisions is clear error,” because the Board’s remedy for the violations at issue “includes both an

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affirmative provision that employees be reinstated to their former positions, as well as a cease and

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desist provision restraining the employer from refusing to hire employees of its predecessor.” (Id.

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at 4.)

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The court finds amending its February 10, 2015 order is warranted. In holding so,

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the court does not engage in any fact-finding regarding respondent’s compliance with the court’s

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February 10, 2015 order. Rather, the court makes a limited amendment to its prior order to reflect

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its original intention. The cease and desist provisions that petitioner now seeks to add to the

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court’s order were included in both the original petition for injunction (ECF No. 1 at 8–9) and the

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proposed temporary injunction order (ECF No. 1-4 at 2). The court should have included those

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provisions in its order because they are designed to effectuate the purposes and policies of the

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NLRA. See Frankl v. HTH Corp., 825 F. Supp. 2d 1010, 1050 (D. Haw. 2011), aff’d sub nom.

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Frankl ex rel. N.L.R.B. v. HTH Corp., 693 F.3d 1051 (9th Cir. 2012); New Breed Leasing Corp.,

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317 NLRB 1011, 1026–27 (1995). Therefore, the court AMENDS the directive portion of its

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February 10, 2015 order (ECF No. 27) to read as follows:

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The court HEREBY ORDERS respondent, its officers, representatives,

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supervisors, agents, servants, employees, attorneys, and all persons acting on its behalf or in

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participation with it to take the following steps pending the final disposition of the matter:

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a. Offer Genesther Taylor immediate instatement to the job position which she

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previously held with her predecessor employer Horizons, or to a substantially

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equivalent position if her position no longer exists, without prejudice to

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Taylor’s rights and privileges, displacing, if necessary, any newly hired outside

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applicants;
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b. Permit Genesther Taylor access to the Sacramento Job Corps Center for the

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purpose of representing union members in grievance proceedings and other

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union-related matters (such as collective-bargaining sessions) that occur there;

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c. Within fourteen (14) days of the date of this Order, post copies of the District

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Court’s Order at the Sacramento Job Corps Center located in Sacramento,

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California, in all places where notices to its employees are normally posted;

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maintain these postings during the Board’s administrative proceeding free from

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all obstructions and defacements; grant all employees free and unrestricted

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access to said postings; and grant to agents of the Board reasonable access to

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its facilities to monitor compliance with this posting requirement; and

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d. Within twenty-one (21) days of the issuance of this order, file with the court

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and serve upon the Regional Director of Region 20 of the Board, a sworn

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affidavit from a responsible official describing with specificity the manner in

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which respondent has complied with the terms of the Order, including the

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locations of the posted documents.

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The court ADDITIONALLY ORDERS that no later than seven (7) days after the

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ALJ issues the final recommendation, the parties shall file a Joint Status Report with the court

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briefly setting forth the decision of the ALJ and the schedule for further proceedings before the

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Board.

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The court FURTHER ORDERS respondent, its officers, representatives,

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supervisors, agents, servants, employees, attorneys and all persons acting on its behalf or in

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participation with it, to cease and desist from the following acts and conduct, pending the final

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disposition of this matter now pending before the board:

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a. Refusing to hire Genesther Taylor or other bargaining unit employees of
predecessor employer Horizons because of their union support or affiliation;

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b. Refusing to permit Genesther Taylor or other Union representatives access to

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the Sacramento Job Corps Center for the purpose of collective bargaining;

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c. In any like or related manner interfering with, restraining or coercing
employees in the exercise of their Section 7 rights.

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The court’s February 10, 2015 order shall remain in full effect in all other respects.

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IT IS SO ORDERED

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DATED: March 18, 2015.

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UNITED STATES DISTRICT JUDGE

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