Barker v. A.D. Conner, Inc. et al

Filing 57

WRITTEN Opinion entered by the Honorable Robert M. Dow, Jr on 4/14/2011: For the reasons explained in open court at the April 12 motion hearing, the pending motions are resolved as follows: Respondents motion to stay the case 7 is respectfully den ied; Petitioners motions concerning briefing in this matter [10, 12] are granted in part as explained below; the joint motion of Teamsters Local Unions Nos. 142 and 705 for leave to appear 16 is respectfully denied without prejudice; Petitioners mo tion to quash Respondents discovery requests 18 is granted at this time, but subject to the caveat discussed on the record (and below); and Defendants motions for leave to file oversized briefs [22, 24] are granted. Petitioners brief in support of his motion for preliminary injunction 4 is due on 4/20/2011, Respondents answer to the petition and response to the motion for preliminary injunction are due on 5/4/2011, and Petitioners reply (should he wish to file one) is due on 5/9/2011. Petiti oners and Respondents initial briefs shall each be limited to thirty pages, and Petitioners reply (should there be one) shall be no longer than fifteen pages. Should the Court conclude that discovery and live testimony would not be useful to the disp osition of the motion for preliminary relief, this matter will proceed to hearing on 5/13/2011 at 10:00 a.m. Should the Court permit discovery and request live testimony, it will so advise the parties, set the matter for further status, and reset the hearing to 5/31/2011 at 10:00 a.m. Notices Mailed by Judge's Staff (tbk, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Robert Dow, Jr.

CASE NUMBER

11 C 2255

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

4/14/2011

Barker vs. A.D. Conner, Inc., et al.

DOCKET ENTRY TEXT

For the reasons explained in open court at the April 12 motion hearing, the pending motions are resolved as
follows: Respondents’ motion to stay the case [7] is respectfully denied; Petitioner’s motions concerning briefing
in this matter [10, 12] are granted in part as explained below; the joint motion of Teamsters Local Unions Nos.
142 and 705 for leave to appear [16] is respectfully denied without prejudice; Petitioner’s motion to quash
Respondents’ discovery requests [18] is granted at this time, but subject to the caveat discussed on the record
(and below); and Defendant’s motions for leave to file oversized briefs [22, 24] are granted. Petitioner’s brief
in support of his motion for preliminary injunction [4] is due on 4/20/2011, Respondents’ answer to the petition
and response to the motion for preliminary injunction are due on 5/4/2011, and Petitioner’s reply (should he wish
to file one) is due on 5/9/2011. Petitioner’s and Respondents’ initial briefs shall each be limited to thirty pages,
and Petitioner’s reply (should there be one) shall be no longer than fifteen pages. Should the Court conclude that
discovery and live testimony would not be useful to the disposition of the motion for preliminary relief, this
matter will proceed to hearing on 5/13/2011 at 10:00 a.m. Should the Court permit discovery and request live
testimony, it will so advise the parties, set the matter for further status, and reset the hearing to 5/31/2011 at 10:00
a.m.
O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT
The following motions are pending before the Court at this time: Respondents’ motion to suspend briefing
and stay the case until the National Labor Relations Board (“NLRB” or “Board”) issues its ruling [7];
Petitioner’s motion to shorten time for filing an answer and to set time for oral argument; [10]; Petitioner’s
motion to try their petition for preliminary injunction on the basis of the administrative law judge’s hearing
transcript and exhibits and for oral argument [12]; the Teamsters’ Local Unions 142 and 702 motion for leave
to appear [16]; Petitioner’s motion to quash Respondents’ notice of depositions and document request [18];
and Respondents’ motion to file an oversized brief in response to Petitioner’s motion to quash [22] and in
support of its motion to stay the proceeding [24].
The issues involved in the motions are in part overlapping or interrelated—there are essentially three issues
before the Court: (1) whether Petitioner’s seeking of an injunction pursuant to § 10(j) of the NLRA while the
underlying case is pending before the NLRB is procedurally improper; (2) whether Defendant is entitled to
discovery and a “full evidentiary hearing” with live witnesses; and (3) whether the unions should be
permitted to appear and file an amicus brief. Petitioner also requests expedited briefing in this matter.
To the first issue, the Court concludes that there is nothing procedurally improper about the General
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STATEMENT
Counsel’s seeking of an injunction pursuant to § 10(j) of the NLRA while the underlying case is pending
before the Board. To the contrary, § 10(j) of the National Labor Relations Act “authorizes a district court to
order injunctive relief pending the NLRB’s final disposition of an unfair labor practices claim if such relief
would be ‘just and proper.’” Spurlino Materials, LLC, 546 F.3d 491, 499 (7th Cir. 2008) (quoting 29 U.S.C.
§ 160(j)); see also Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 286 (7th Cir. 2001). A stay of this
proceeding at its very outset would be contrary to the statutory scheme, and thus Respondent’s motion to stay
the case [7] is respectfully denied.
Next, as the Court has determined not to stay the case, Respondents’ initial motion ([7] at 7-9) asks for the
opportunity to conduct discovery and a “full evidentiary hearing” before the Court rules on whether the grant
the requested injunction. Respondents seek to depose NLRB Regional Director Joseph A. Barker and Acting
General Counsel Lafe Soloman and they seek in discovery “all non-privileged documents contained in the
Acting General Counsel’s and Regional Directors’ investigation files leading up to the Regional Director’s
request to and the Acting General Counsel’s decision and the Board’s decision to support pursuit of a 10(j)
injunction against the respondents in this case.” As stated on the record, the Court is not persuaded at this
time that it requires any materials beyond the transcript of the hearing before the NLRB and any exhibits
used at the hearing in order to decide the limited question of whether § 10(j) relief is appropriate. However,
the Court is equally unconvinced that it should foreclose any possibility of discovery and depositions prior to
reviewing the ALJ record and the parties’ initial submissions on the request for injunctive relief.
Accordingly, Petitioner’s motion to quash Respondents’ discovery requests [18] is granted at this time, but
subject to being revisited (see below).

In the present circumstances, the Court concludes that the most sensible course is to reserve judgment on the
matter of discovery and depositions pending its review of the record assembled to date before the ALJ and
the parties’ briefs. To that end, Petitioner’s motions concerning briefing in this matter [10, 12] are granted in
part, as reflected in the briefing schedule set forth above. The Court already has received a copy of the
record of agency proceedings. After the Court has had an opportunity to review the pertinent materials, it
will better be able to assess whether materials and/or testimony outside the existing record would be helpful
to the resolution of the matters before the Court.
Finally, the Teamsters’ request for a “leave to appear” [16] is respectfully denied without prejudice. At the
motion hearing, counsel for the unions clarified that the unions are not seeking formal intervenor status.
Counsel also confirmed on the record that at least at this stage of the case Petitioners are adequately
advancing the interests of the unions and their members. Accordingly, and taking into account the expedited
nature of this proceeding and the interests of the parties (and the Court) in streamlining the presentation of
the issues and avoiding duplication of effort, the Court sees no need for an amicus brief or similar filing from
the unions at this time. The Court, the parties, or the Teamsters may revisit the issue of formal participation
by the unions in this matter at a later date should such participation appear to be warranted.

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