Harrell v. American Red Cross Heart of America Blood Services Region

Filing 34

ORDER granting 3 Motion to Limit Section 10(j) Hearing Issue of "Likelihood of Success on the Merits" to the Administrative Record, Supplemented by Evicence on Whether Injunctive Relief is Just and Proper. Entered by Judge James E. Shadid on 9/7/11. (SW, ilcd)

E-FILED

Wednesday, 07 September, 2011 02:18:37 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS

CLAUDE T. HARRELL, JR., Regional
Director of Subregion 33 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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v.
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NATIONAL RED CROSS, HEART OF
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AMERICA BLOOD SERVICES REGION, )
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Respondent.
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Case No. 11-1284

OPINION
This matter is now before the Court on Petitioner’s Motion to Limit Section 10(j) Hearing
Issue of “Likelihood of Success on the Merits” to the Administrative Record, Supplemented by
Evidence on Whether Injunctive Relief is Just and Proper. For the reasons set forth below, the
Motion [#3] is GRANTED.
DISCUSSION
Petitioner has brought this action against Respondent seeking an injunction pursuant to
Section 10(j) of the National Labor Relations Act (the “Act”) pending final disposition of the
underlying administrative matter charging Respondent with engaging in unfair labor practices.
Section 10(j) provides in relevant part:
The Board shall have power, upon issuance of a complaint as
provided in subsection (b) charging that any person has engaged in or
is engaging in an unfair labor practice, to petition any United States

District Court, within any district wherein the unfair labor practice in
question is alleged to have occurred or wherein such person resides
or transacts business, for appropriate temporary relief or restraining
order. Upon the filing of any such petition the court shall cause
notice thereof to be served upon such person, and thereupon shall
have jurisdiction to grant the Board such temporary relief or
restraining order as it deems just and proper.
29 U.S.C. § 160(j). The Court lacks jurisdiction to determine the merits of the underlying labor
dispute pending before the Board, and consequently, any injunctive relief entered terminates by
operation of law on the issuance of the Board’s final administrative ruling. Barbour v. Central
Cartage, Inc., 583 F.2d 335 (7th Cir. 1978). Accordingly, the Court’s inquiry is limited to a
determination of whether the evidence presented, when viewed in the light most favorable to
Petitioner, could be resolved by the Board in favor of Petitioner.
The Court applies the traditional test for preliminary injunctive relief and “may order
injunctive relief pending the Board’s final position of an unfair labor practice claim if such relief
would be ‘just and proper.’” Lineback v. Irving Ready-Mix, Inc., ___ F.3d ___, 2011 WL 3437680,
at *3 (7th Cir. Aug. 5, 2011), citing Lineback v. Spurlino Materials LLC, 546 F.3d 491, 499 (7th Cir.
2008). Under this test, the Court must consider “the lack of an adequate remedy at law, the balance
of potential harms posed by the denial or grant of interim relief, the public interest, and the
petitioner’s likelihood of success on the merits of its complaint.” Irving Ready-Mix, 2011 WL
3437680, at *3. That being said, injunctive relief is an extraordinary remedy appropriate only where
“effective enforcement of the Act is threatened by delay in the Board’s dispute resolution process.”
Id., citing Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 297 (7th Cir. 2001).
In his Motion, Petitioner asks the Court to limit the evidence to be considered in establishing
his likelihood of success on the merits to the administrative record that is before the ALJ on the
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underlying complaint. Respondent argues that Petitioner’s Motion is a premature and improper
attempt to exclude a broad array of evidence that may be relevant to whether injunctive relief is just
and proper, as evidence may be relevant to more than one element of the test.
The likelihood of success factor requires the Court to “evaluate[] only on a preliminary basis
the Director’s probability of success before the Board.” Id.. citing Francisco Foods, 276 F.3d at 287;
Spurlino Materials, 546 F.3d at 502-03 (noting that the inquiry is “confined to the likelihood that the
Director will prevail before the Board” and involves a “predictive judgment about how the NLRB
is likely to rule.”) As the Board cannot consider other evidence outside the record presented to the
ALJ in making its ultimate determination pursuant to the Administrative Procedure Act, 5 U.S.C.
§ 556(e), logic compels the conclusion that this Court’s review in assessing Petitioner’s likelihood
of success on the merits should be limited to the same evidence that will be considered by the Board.
This conclusion is supported by case law in this Circuit.

In Moran v. LaFarge North

America, Inc., 286 F.Supp.2d 1002, 1007 (N.D.Ind. 2003), the court found that “[i]n determining
whether Petitioner can demonstrate a likelihood of success on the merits, this Court must decide
whether Petitioner presented sufficient evidence to the ALJ to prevail on the merits.” Cited as
authority for this conclusion is the Seventh Circuit’s decision in NLRB v, Electro-Voice, 83 F.3d
1559, 1566-68 (7th Cir. 1996), which granted the Director’s request to rely on the record before the
ALJ rather than hold an evidentiary hearing and discussed the district court’s consideration of the
evidence before the Board.
Respondent has failed to persuade the Court that evidence outside the administrative record
should properly be considered in evaluating the Petitioner’s likelihood of success on the merits.
Although Respondent refers to evidence of recent and ongoing bargaining sessions as undermining
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the argument that its current conduct has a negative effect on the union’s status, such evidence
cannot have any impact on Petitioner’s likelihood of success in the underlying proceeding as it was
not presented to the ALJ and therefore will not be considered by the Board. Rather than bearing on
the likelihood of success inquiry, the Court finds such evidence to be relevant to the other factors
considered in the just and proper inquiry, that is whether the labor effort will suffer irreparable harm
in the absence of injunctive relief and the balance of the harms posed. Petitioner clearly concedes
the propriety of supplementing the record in this respect, and it will generally be allowed for that
purpose subject to specific objection.
CONCLUSION
For the reasons set forth above, Petitioner’s Motion to Limit Section 10(j) Hearing Issue of
“Likelihood of Success on the Merits” to the Administrative Record, Supplemented by Evidence on
Whether Injunctive Relief is Just and Proper [#3] is GRANTED.
ENTERED this 7th day of September, 2011.

s/ James E. Shadid
James E. Shadid
United States District Judge

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