Ohr v. MTIL, Inc.

Filing 25

MEMORANDUM Opinion and Order The Motion of the Petitioner for Preliminary Injunction 13 is granted in part and denied in part as explained in the accompanying Memorandum Opinion and Order. Enter Memorandum Opinion and Order. Signed by the Honorable Jeffrey Cole on 11/14/2017:Mailed notice(jms, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PETER SUNG OHR, REGIONAL DIRECTOR OF,
REGION 13 OF THE NATIONAL LABOR
RELATIONS BOARD, FOR AND ON BEHALF OF
THE NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
MTIL, INC.,
Respondent.

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No. 17 C 2656

Magistrate Judge Cole

MEMORANDUM OPINION AND ORDER
A.
Peter Sung Ohr, Regional Director of Region 13 of the National Labor Relations Board
(“Petitioner”) seeks a preliminary injunction pursuant to Section 10(j) of the National Labor
Relations Act ordering MTIL, Inc.: a) to bargain in “good faith” with United Electrical, Radio and
Machine Workers of America, Local 1103 over the terms of employment of its production and
maintenance workers, b) to restore the status quo by reinstating a discharged employee, who was the
Union’s lead organizer, and c) to allow MTIL’s employees to exercise their rights guaranteed by the
Act. The defendant vehemently disagrees with the Petitioner’s assessment of the case. The Petitioner
has an administrative case about all this running on a parallel track to this one.
In February of 2017, the Petitioner lodged a complaint of unfair labor practices against MTIL
before the National Labor Relations Board. A hearing was held before an Administrative Law Judge
on May 8-11, 2017, and the parties had until June 15, 2017 to file briefs. They are now awaiting the
ALJ’s decision. In the meantime, a month before the administrative hearing, the Petitioner filed this

action. The Petitioner’s brief in support of its petition for preliminary injunction seeks to portray the
case in rather grim and absolute terms, almost as though a provocative presentation can resolve the
case against MTIL, Inc. Thus, we are told, among other things, that the present case presents no less
than an employer’s “crusade” against its employees and its commission of “egregious” violations
of the NLRA that “cannot be eradicated by the mere passage of time or the Board’s usual remedies.”
[Dkt. #20 at 1-4, 10-11]. Of course, “saying so doesn't make it so....” United States v. 5443 Suffield
Terrace, Skokie, Ill., 607 F.3d 504, 510 (7th Cir.2010). While “[a] siren turns more heads than a
birdsong does,” Charles Kuralt, American Moments, 11 (1998), claims of catastrophe are often
needlessly exaggerated, and sometimes they are not true. Cf., Kelcey v. Takers Co., 217 F.2d 541,
546 (2d. Cir. 1954)(Frank, J.). Compare Burlington Indus., Inc. v. Dayco Corp., 849 F.2d 1418, 1422
(Fed. Cir. 1988)(“the habit of charging inequitable conduct in almost every major patent case has
become an absolute plague.”). And so we turn to the facts of this case, sensitive to the realization
that hyperbolic statements in briefs do not resolve concrete cases. Belleau v. Wall, 811 F.3d 929, 938
(7th Cir. 2016). See Upjohn Company v. United States, 449 U.S. 383, 390 (1981); Sandra T.E. v.
South Berwyn School Dist. 100, 600 F.3d 612, 619 (7th Cir.2010).
B.
Under Section 10(j) of the National Labor Relations Act, a district court is authorized to enter
“just and proper” injunctive relief pending the final disposition of an unfair labor practices claim by
the N.L.R.B. 29 U.S.C. § 160(j). The reason there must be two proceedings moving along parallel
tracks in the federal court and before the N.L.R.B. is because Congress has decided that the N.L.R.B.
often cannot accomplish its responsibilities in time to make a difference. The N.L.R.B.’s often
languorous pace has caused the Seventh Circuit to call it “extraordinarily slow,” Lineback v. Spurlino
2

Materials, LLC, 546 F.3d 491, 500 (7th Cir. 2008), and “notoriously glacial.” Lineback v. Irving
Ready-Mix, Inc., 653 F.3d 566, 570 (7th Cir. 2011). Yet, “[t]he longer that an employer is able to
chill union participation or avoid bargaining with a union, the less likely it is that the union will be
able to organize and to represent employees effectively once the N.L.R.B. issues its final order.”
Spurlino Materials, 546 F.3d at 500. Thus, the need for prompt judicial review of the Petitioner’s
request ordering MTIL to bargain in good faith with United Electrical, Radio and Machine Workers
of America, Local 1103 over the terms of its employment of its production and maintenance workers
and for an injunction ordering MTIL to reinstate an employee it has fired, Bobby Frierson, a union
organizer.1
Under 10(j) and the applicable case law, relief is “just and proper” when four factors are
present: (1) the N.L.R.B. has no adequate remedy at law; (2) the union will be irreparably harmed
without interim relief, and that potential harm to the union outweighs potential harm to the employer;
(3) public harm would occur without the relief; and (4) the N.L.R.B. has a reasonable likelihood of
prevailing. Harrell ex rel. N.L.R.B. v. Am. Red Cross, Heart of Am. Blood Servs. Region, 714 F.3d
553, 556 (7th Cir. 2013); Irving Ready–Mix, Inc., 653 F.3d at 570; Spurlino Materials, 546 F.3d at
500; Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 286 (7th Cir. 2001). The Petitioner bears the
burden of establishing the first, third and fourth of these circumstances by a preponderance of the
1

The Act states in relevant part that:

The Board shall have power, upon issuance of a complaint as provided in subsection (b) of
this section 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 to the Board such temporary relief or restraining
order as it deems just and proper.

3

evidence. Spurlino Materials, 546 F.3d at 500; Francisco Foods, 276 F.3d at 286. The second
prong is evaluated on a sliding scale: the better the Petitioner’s case on the merits, the less its burden
to prove that the harm in delay would be irreparable, and vice versa. Spurlino Materials, 546 F.3d
at 500; (7th Cir. 2008); Francisco Foods, 276 F.3d at 286-87.
While “[a]n injunction granted under section 10(j) is an ‘extraordinary remedy’ and should
be granted only in those situations in which effective enforcement of the Act is threatened by delay
in the Board's dispute resolution process, in order to demonstrate a reasonable likelihood of success
on the merits, Irving Ready-Mix, 653 F.3d at 570, the Petitioner need only show the “evidence [i]s
sufficient to establish a better than negligible chance of success on the merits.” Spurlino Materials,
546 F.3d at 503; N.L.R.B. v. Electro–Voice, 83 F.3d 1559, 1570 (7th Cir. 1996). Things are made
more difficult by the Petitioner asking the court to rule based on the hearing transcript and exhibits
taken at the administrative hearing, when not even the ALJ has not yet ruled. In that context, a court
is prohibited from making credibility findings, even though the outcome of most cases depends upon
a resolution of competing versions of events given by interested witnesses, often willing to dissemble
when it is to their advantage. Schmude v. Tricam Industries, Inc. 556 F.3d 624, 628 (7th Cir. 2009).
Under the Act, credibility determinations are the exclusive province of the N.L.R.B., acting though
the ALJ, who heard the testimony and observed the witnesses. Spurlino Materials, 546 F.3d at 491;
Francisco Foods, 276 F.3d at 287. The law recognizes that “only the trial judge can be aware of the
variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and
belief in what is said.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985). See also,
Oil, Chem. & Atomic Workers Int'l Union, AFL-CIO v. N. L. R. B., 547 F.2d 575, 592 (D.C. Cir.
1976). Or as Justice Jackson succinctly put it, “a few minutes’ observation in the courtroom is more
4

informing than reams of cold record.” Ashcraft v. State of Tenn. 322 U.S. 143 (1944)(Jackson, J.,
dissenting).
Yet, even though the court cannot consider credibility, it is charged with predicting what the
N.L.R.B.’s ultimate conclusion likely will be. Spurlino Materials, 546 F.3d at 503 (describing the
court’s task as making “a predictive judgment about how the N.L.R.B. is likely to rule.”); N.L.R.B.
v. Q-1 Motor Exp., Inc., 25 F.3d 473, 477 n.3 (7th Cir. 1994)(“The court therefore must attempt to
predict what the eventual outcome of the N.L.R.B.'s proceedings will be and to act accordingly. If
the eventual outcome turns out to be different from what was predicted, however, it is obviously the
prediction, not the outcome, that must be rejected.”). In a case dominated by conflicting versions of
events from various witnesses, the ALJ’s decision will involve multiple credibility findings. Not
surprisingly, at least based on the cases to which the Petitioner has called the court’s attention, these
predictions don’t have a track record of being especially accurate or consistent, especially when
made prior to the ALJ’s decision. See, e.g., Electro-Voice, 83 F.3d at 166 (ALJ’s conclusion directly
contradicted conclusion court made, based on the transcript of the administrative hearing, one month
earlier); Francisco Foods, Inc., 276 F.3d at 284(two months after the district court denied the
Director's petition for interim relief on dry record, the ALJ ruled the other way); Q-1 Motor Exp.,
Inc., 25 F.3d at 477 n.3 (district court’s ruling different than eventual ALJ determination). When
there is an ALJ’s decision already in hand, the matter becomes simpler, as the court is obligated to
“give some measure of deference to the view of the ALJ in determining the likelihood of success.”
Francisco Foods, 276 F.3d at 288. After all “[t]he ALJ is the Board's first-level decisionmaker.
Having presided over the merits hearing, the ALJ's factual and legal determinations supply a useful
benchmark against which the Director's prospects of success may be weighed.” See also Spurlino
5

Materials, 546 F.3d at 502–503.
Along those lines, the Petitioner tells us that in proceedings like this one, the court “should
give the [petitioner’s] version of the disputed facts the ‘benefit of the doubt’ and should accept the
reasonable inferences he draws from the facts if they are ‘within the range of rationality,’” quoting
from the 41 year-old Squillacote v. Graphic Arts Int'l Union, AFL-CIO, 540 F.2d 853, 858–59 (7th
Cir. 1976). [Dkt. #15, at 3]. But that is to ignore the importance of the role credibility plays and to
effectively demand almost all cases be decided in favor of the N.L.R.B. Also, Graphic Arts was
about a Section 10(l) injunction, not a 10(j) injunction. 540 F.2d at 858. In the context of a 10(j)
case, which is what we are concerned with here, the most recent Seventh Circuit comment on
whether the Petitioner should be entitled to “the benefit of the doubt” appears to be in Electro-Voice,
83 F.3d at 1567, where the court refused to determine whether the Petitioner’s view of the facts was
entitled to such deference and explained that the concept came from 10(l), not 10(j), cases. 83 F.3d
at 1567 n.16. The only deference the Seventh Circuit has said was applicable to a view of the facts
is “some measure of deference” to the ALJ’s view, Am. Red Cross, Heart of Am. Blood Servs.
Region, 714 F.3d at 556, and, as already stated, the Petitioner doesn’t yet have the ALJ’s decision.
As a result, we wade into the often diametrically opposed stories about working and union
organizing at MTIL’s facility at a bit of a disadvantage, and we attempt to predict what might happen
before the N.L.R.B.
C.
Petitioner tells us that a union organizing campaign among MTIL’s production and
maintenance employees began in mid-October 2016, and resulted in the union filing a petition to
represent MTIL’s employees on November 20th. Petitioner claims that immediately after the election
6

petition was filed, MTIL engaged in a continuous and pervasive campaign to quash the union activity
of its employees. For example, the Petitioner claims that in early December after employee, Willie
Stevens, began wearing a union button, he was “unlawfully interrogated” by plant manager,
Cornelius Chandler. [Dkt. #20, at 3]. But Petitioner cites to no evidence2 of this “interrogation” in
the record, and ipse dixits of counsel don’t count. See IFC Credit Corp. v. Aliano Brothers General
Contractors, Inc., 437 F.3d 606, 610-611 (7th Cir.2006); United States ex rel. Feingold v.
AdminaStar Federal, Inc., 324 F.3d 492, 494, 497 (7th Cir. 2003); Car Carriers Inc. v. Ford Motor
Co., 745 F.2d 1101, 1107 (7th Cir.1984). In fact, when asked what Chandler told him would happen
if a union came in, Stevens testified that he “[couldn’t] recall.” (R. 206). Then N.L.R.B. counsel
asked him if Chandler “mention[ed] the company relocating if the union came in,” Stevens
answered, “[s]omething like that, he was saying. It’s a possibility –.” (R. 206).3

2

This is a tack that Petitioner, unfortunately, takes throughout. The transcript is over 700 pages long.
Documentary evidence puts the record at well over 1000 pages. While an attorney who has lived a case may
know with precision where in a record certain points are made, a judge, with no similar familiarity with the
materials, cannot. That is why, time and again, the Seventh Circuit has that warned attorneys that arguments
unsupported by citations to the record need not be considered. Rahn v. Bd. of Trustees of N. Illinois Univ.,
803 F.3d 285, 294 (7th Cir. 2015)(“As we have oft-stated, ‘we will not root through the hundreds of
documents and thousands of pages that make up the record here to make [plaintiff’s] case for him.’”); Spitz
v. Proven Winners N. Am., LLC, 759 F.3d 724, 731 (7th Cir. 2014)(“. . .’[a] brief must make all arguments
accessible to the judges, rather than ask them to play archaeologist with the record.’”); United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)(“Judges are not like pigs, hunting for truffles buried in the
briefs.”).
3

A leading question, even though proper where a witness claims a lack of recall, often provokes an
unreliable or at least suspect response. United States v. Campbell, 659 F.3d 607, 612 (7th Cir. 2011), rev’d
on other grounds, 568 U.S. 802 (2012). Of course, this involves a determination of credibility, Stine v.
Marathon Oil Co., 976 F.2d 254, 266 (5th Cir. 1992),which is beyond our charge here.
“Employers . . . violate § 8(a)(1) when they interrogate employees about their union activities in
circumstances that tend to interfere with organizational efforts.” Electro-Voice, 83 F.3d at 1570. Petitioner
does not develop this point or explain what was asked of Stevens or how it was asked. [Dkt. #20, at 3].

7

A former MTIL employee, Tonia Zekas, testified that she overheard plant manager, Ramon
Haya-Trueba, ask one of the employees, Labrie Ousley, to get his line to vote against unionizing.
Zekas said that Ousley told Haya-Trueba “he would be working on that.” Haya-Trueba told Ousley
he would give him $500 if his line voted against the union, and gave him three t-shirts. (R. 37).
Zekas explained that the t-shirts, which were green, meant a pay increase for Ousley of $1.25 per
hour. (R. 38). While Zekas testified that Haya-Trueba writes in Spanish and prefers to speak Spanish
over English, she said this exchange, which she claims she overheard through a two-inch gap in the
wall between offices, was in English. (R. 35, 36, 78). Haya-Trueba, the plant manager, who testified
through an interpreter at the hearing said that he spoke very little English – “loose words” like
“hello” or “good morning,” that he never had this interaction with Ousley and that one could not
hear, or at least not understand, conversations through the wall. (R. 632, 626).
Temporary employee, Tasha Lee, testified that in early December she saw plant manager,
Chandler, in the break room. She said he picked up a union flyer and “[h]e was like, if the union
wins, there's going to be a lot of people getting fired.” (R. 336). There may have been one other
person in the break room, but Lee could not recall. (R. 335). An MTIL employee, Matthew Wilmot,
testified that plant manager, Haya-Trueba, asked him if he had signed a union flyer. (R. 324).
On December 7, 2016, MTIL held an employee meeting. Edgardo Villanueva, a consultant
MTIL engaged for labor relations, testified that the idea was to educate the employees about the
“nuances” of union membership. (R. 675, 686). While the union flyers told them they would get
more money if they voted union, Villanueva explained this wasn’t always the case. (R. 686). Oscar
Bendezu, who started working for MTIL in March 2016 and attended the first-shift meeting, called
Villanueva “the guy from union buster.” (R. 309). Bendezu was pro-union; he wanted a union
8

because “[t]he way they talk to us. They force us to do what we doing. It was real harassment at that
time . . . .” (R. 262). Bendezu, who understood both Spanish and English, testified that HayaTrueba told the employees in Spanish “[t]hat he probably would move if the union win.” (R. 310).
Bendezu didn’t know if he meant himself or the company. (R. 310). Villanueva translated this into
English and, again, Bendezu didn’t know if they meant him or the company would move. (R. 310).
Bobby Frierson, a union organizer and employee, who was fired and who is the centerpiece
of this case, testified that on December 9, 2016, “Mr. Ramon” – Frierson didn’t know Haya-Trueba’s
last name – asked him what he could do to get the union not to come in. (R. 152). Frierson said he
told him it was too late. (R. 153). Frierson testified that a couple of days later, on December 12,
Haya-Trueba told him that the picture of him on a pro-union flyer was “nice.” (R. 160). Frierson said
Chandler told him, that “[e]verybody is not going to make it. The important people, yeah, we can
take care of them, but we can’t take care of everyone. Maybe on the next go around we can, but I can
take care of you.” (Tr. 162). Chandler told Frierson he was one of his favorites. (R. 162). When
counsel asked whether Chandler wanted anything in exchange, Frierson answered: “he didn’t say it,
but he was saying – it was pretty much to vote no for the union.” (R. 162). Frierson testified that he
then told Chandler, “instead of offering me a $3 raise, there’s six people in line. You could give
everybody 50 cents.” (R. 162-63). When counsel asked when Chandler had offered the $3 raise,
Frierson explained: “. . . . He didn’t actually say, here is a $3 raise. He said we can give you a raise.”
(R. 163). Frierson then said there was no exact number, and he wouldn’t have believed him anyway.
(R. 163).
Plant Manager, Chandler, testified that, later that day, MTIL distributed bonuses, and for the
first time six employees received payments of $100. (R. 511). Haya-Trueba testified that he didn’t
9

grant any bonuses at that time. (R. 624). Villanueva testified that, at the meeting, Haya-Trueba told
the employees the company “would be looking at the possibility of pay . . . for the up[coming]
holiday, which was Christmas . . . .” (R. 696). Plant Manager, Haya-Trueba “absolutely [did] not”
tie this to the upcoming election. (R. 696). Haya-Trueba, testified that they began paying for all
holidays when, at Thanksgiving, they received many complaints about it. (R. 623).
On December 14, just two days prior to the scheduled election, MTIL held another meeting
at which, according to Bendezu, Haya-Trueba told employees that “he’s [going] to do drug tests and
stuff like that [and] if [you] don’t pass the test everybody is going to be out” and “he’s going to start
paying for holiday[s].” (R. 312). Villanueva said the subject of drug tests “absolutely [did] not”
come up. (R. 695-96). Stevens testified that Villanueva translated Plant Manager, Haya-Trueba, as
saying testing “may be a possibility if people use drugs – .” (R. 208). Crishonna Collins, who began
with MTIL in August 2016, said Villanueva translated Haya-Trueba as telling the employees that
“[t]he voting for the union was cancelled,” and “if the union would have come in everybody would
have been drug tested and also if the union came in the whole place would shut down.” (R. 347).
The main focus of this case, however, is the termination of union organizer Frierson on
December 14, 2016, shortly before the vote. The reasons given for his termination on his “Employee
Exit Form” were “[t]hreatening to conduct an act of violence against another employee. [He]
displayed insubordinate behavior when he failed to exit the facility after direction. The employee
also made verbal threats to associates.” (G.C. 70). The testimony regarding Frierson’s conduct are
these: Frierson testified that, on December 13, 2016, he was standing around by the time clock with
two other employees when Chandler asked him if he got paid to stand around. (R. 164-65).
Obviously, this was not a question, but an expression of sarcasm and displeasure. Frierson, who
10

according to his picture was an African American, sarcastically responded, “no sir, boss.” (R.
165)(Emphasis supplied). Chandler thought Mr. Frierson was being patronizing and asked if he
thought he was funny, and, again, Frierson responded, “no sir, boss.” (R. 145)(Emphasis supplied).
Frierson wasn’t sure whether Chandler then said he was would write him up or that he was merely
giving him a verbal warning. (R. 145). But it was one or the other. Nonetheless, according to
Frierson, he continued along the same lines:
I said, is there anything else you need me to do, boss? I said, no sir, boss. Is it okay
if I go back and do the job you say you pay me for, boss?
(R. 145)(Emphasis supplied).4
Despite Mr. Frierson’s obvious taunting and his intentionally insulting and provocative
remarks, Chandler testified that he gave Frierson only a verbal warning because, he needed him to
be in his work area during the shift. (R. 482). The story of this exchange, much of it admittedly
coming from Frierson, himself, is likely to be credited by the ALJ. And Frierson did not challenge
what Chandler said. Chandler then testified that he had a second shift meeting. While the meeting
was in progress, he heard loud knocking on the door; it was Frierson. (R. 483-84). According to
Chandler, Frierson said, “[w]here’s my verbal. Fuck that. I want my verbal.” (R. 484)(Emphasis
supplied). Frierson admitted that he interrupted the meeting so he could get his “write-up because

4

One is reminded of Justice Jackson’s famous observation in Kunz v. People of State of New York,
340 U.S. 290, 299 (1951)(dissenting opinion): “These terse epithets come down to our generation weighted
with hatreds accumulated through centuries of bloodshed. They are recognized words of art in the profession
of defamation. They are not the kind of insult that men bandy and laugh off when the spirits are high and the
flagons are low. They are not in that class of epithets whose literal sting will be drawn if the speaker smiles
when he uses them. They are always, and in every context, insults which do not spring from reason and can
be answered by none.”

11

[Chandler] said he wrote [him] up . . . .” (R. 167). Again, Chandler had just given him a verbal
warning, as he explained in his testimony. (R. 484). He testified that he left his meeting and told
Frierson, who was then in the office, that he had said it was a verbal warning and he wasn’t going
to write him up. (R. 484). During his testimony, Frierson agreed that Chandler had told him he
wasn’t writing him up. (R. 148). The Petitioner concedes there was no write-up, only a verbal
warning. [Dkt. #20, at 6].
Mr. Frierson was angry because Chandler, he testified had “made a scene out there,” and he
demanded a write-up instead of a verbal warning. (R. 168). Mr. Chandler testified that he and
Lionel Hudson– the human resources administrator – asked Frierson to leave the office because
Frierson was so irate. (R. 484). Chandler testified Frierson stood in the corner of the office and
then came toward him with a clenched fist; Chandler said he felt threatened. (R. 484). As Hudson
described it, Frierson was upset, the two were close together, and body language led him to believe
things could escalate. (R. 426). Body language, of course, can be meaningful. See, e.g., Skilling v.
United States, 561 U.S. 358, 386 (2010); United States v. Olano, 507 U.S. 725, 739 (1993); United
States v. Wing, 104 F.3d 986, 988 (7th Cir. 1997). Hudson got between them. (R. 426). Chandler
testified that he told Frierson to leave, but he would not. (R. 484). Someone grabbed Frierson and
someone grabbed Chandler. (R. 484). According to Frierson, Chandler told him to leave the
building, and he simply left without any further confrontation. (R. 168). Stevens testified that, from
what he saw, Chandler and Frierson were arguing about whether Chandler had said Frierson would
be written up or whether it had just been a verbal warning; Chandler told him to leave, and Frierson
left. (R. 216).

12

Gerald Bradley, a forklift lead with MTIL, essentially corroborated Chandler’s version of the
exchange. He said Frierson interrupted the meeting and was very disruptive. (R. 553). He further
testified that Chandler avoided Frierson and went on with the meeting. (R. 554). Then, out in the
office after the meeting, he said:
Bobby [Frierson] came in. He was loud. You know, aggressive, and him [sic] and
[Chandler] started arguing again. You know, it got very, very intense, very extreme,
you know, to the point Bobby was so upset and angry you couldn't even say nothing
to him. You know, he got very close, in close proximity to [Chandler], you know,
rearing up at him to the point where I just was like, man, what you doing? I told him,
you tripping. He wasn't trying to hear anything. He waved me off. Said something
to me. You know, yelled something to me.
From that point [Hudson], I think, came out of his office. You know, everyone just
basically tried to, you know, get Bobby to calm down to get him up out the office,
separate him and [Chandler].
(R. 554).
Bradley testified that, right after that, Frierson made hostile gestures toward another
employee, who happened to be Bradley’s nephew. (R. 555). Hostile gestures have meaning. Bott
v. U.S. Airways, Inc., 2009 WL 1686801, at *3 (W.D.N.C. 2009).
Frierson testified that when he left the building he went to the parking lot where he met Sean
Fulkerson from the Union. (R. 169). It seems he had arranged to meet with Fulkerson at this time,
but it’s not entirely clear. (R. 169). Frierson testified that he wanted to have a conversation with him
about the incident that had just happened. (R. 169). According to Frierson, he had punched out at
his usual time, 2:15 p.m. (R. 170). Apparently while he was meeting with Fulkerson – it’s unclear
– a number of employees surrounded him and threatened to kick his ass. (R. 172). One of them was
Bradley. Frierson testified that he told Bradley his issue wasn’t with him “because [Chandler] is his
henchman.” (R. 2). Fulkerson then told Frierson, “that’s not how you beat them,” and Frierson
13

testified he then calmed down. (R. 173). Frierson testified that a security guard then approached
him and after being told to leave the parking lot, he did. (R. 174).
Frierson testified that he reported to work the next day and was called into the office. (R.
174). There, he met Chandler, Hudson, and the security guard. Hudson told him he was suspended
pending an investigation. (R. 175). The “Disciplinary Action Report,” which he signed, said that he
was insubordinate when told to stop talking to other employees and return to work, approached his
supervisor in a threatening manner, and threatened another co-worker. The report also said that
Frierson had engaged in a “[t]hreat of violence” when he approached his supervisor in a threatening
manner and also threatened other co-workers verbally. (G.C. 71). Hudson called him later that
evening and told him he was terminated. (R. 180). The Employee Exit Form, which was not signed
by Frierson, stated that he threatened to commit an act of violence against another employee, and that
he displayed insubordinate behavior when he failed to exit the Facility and also made verbal threats
to associates. (G.C. 70).
D.
Likelihood of Success on the Merits
The Petitioner makes several charges of anti-union animus that he says are “clearly
demonstrated” by the record and show he has a “strong likelihood of success” on the merits. But
Petitioner’s characterization of the evidence as “clear” is not supported by the record. The evidence,
which consists of the testimony of various employees and managers provides, for the most part,
opposing versions of the facts. In cases presenting conflicting versions of events, the outcome
“depends greatly upon nuanced credibility determinations....” JH ex rel. JD v. Henrico Cty. Sch. Bd.,
395 F.3d 185, 197 (4th Cir. 2005). Indeed, without the ability to make credibility judgments, in most
14

cases it would be exceedingly difficult if not be impossible to say that one side or the other had
shown that the version of events sponsored by one party had been shown to be “clearly” true or
“clearly” false. Fortunately for the Petitioner, he doesn’t have to establish anything “clearly.”All he
need show in this case is that he has a “better than negligible” chance of succeeding on the merits
before the N.L.R.B. Spurlino Materials, 546 F.3d at 503 (7th Cir. 2008); Electro–Voice, 83 F.3d
at 1570.
“Better than negligible” is not much of a hurdle to negotiate. Whitaker By Whitaker v.
Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1046 (7th Cir. 2017). In ElectroVoice, for example, the district court denied the Petitioner an injunction, because it concluded “the
evidence of unfair labor practices [wa]s ‘equivocal’ or ‘unclear.’” 83 F.3d at 1568. Although the
employer presented “a plausible explanation” for its actions and “compelling evidence in support
of its case,” 83 F.3d at 1570, the Court of Appeals reversed, noting that the timing of discharges and
the manner in which the terminations were carried out, viewed in the light of the evidence suggesting
that the company engaged in other anti-union practices and acted with anti-union animus, establish
that the Director has “a better than negligible chance of prevailing on the merits.” But, the Court
emphasized, its decision should not be deemed as an expression of opinion on the merits of the case,
itself. Indeed, it stressed that its “holding should not be taken as a finding in favor of the Director
on the merits.” It noted that the defendant had offered a “plausible explanation for the terminations,
and presented compelling evidence in support of its case.” It emphasized that there were credibility
questions regarding witnesses and that its inquiry is limited to whether the Director has a better than
negligible chance of success. Electro-Voice, Inc., 83 F.3d at 1570. As in Electro-Voice, there are
obvious credibility questions affecting both sides, and it’s up to the ALJ to assess credibility in this
15

case. Could the ALJ believe enough of the Petitioner’s witnesses and enough of their testimony to
find for the Petitioner? The answer is “yes.” But so much hinges on the credibility of the witnesses.
First, Petitioner argues that the record “clearly demonstrates” [Dkt. #20, at 3] threats that if
the union won the company would shut down or relocate. Threatening plant closure or other reprisals
for union activity violates §8(a)(1), because “these acts reasonably tend to coerce employees in the
exercise of their rights, regardless of whether they do, in fact, coerce.” Electro-Voice, 83 F.3d at
1570. But, the testimony that the Petitioner relies on doesn’t “clearly demonstrate” any such thing.
When asked what Chandler told him would happen if the union came in, Stevens said he didn’t
remember. It was only when prompted by N.L.R.B. counsel that Stevens said, “something like that.”
(R. 206). When Bendezu testified about relocation threats, he said that Haya-Trueba had told
employees at a meeting that he “probably would move” if the union won. But, Bendezu said he
didn’t know whether Haya-Trueba meant he would move personally or the company would relocate.
(R. 310). So, he didn’t consider it a threat. Collins testified that Haya-Trueba said three things: the
union election was cancelled, if the union won everyone would be drug-tested, and if the union won,
the plant would close. (R. 347).
It’s improbable that Haya-Trueba told the employees the election was cancelled; no other
witness testified he said anything remotely like that.5 If the plant closed, the employees certainly
weren’t going to be drug-tested by MTIL. None of this “clearly establishes” the Petitioner’s view
of the facts. But, that’s not the question. The question is whether the Petitioner has a better than
negligible chance of success before the ALJ and the N.L.R.B. The testimony of the Petitioner’s

5

Actually, Haya-Trueba cancelled nothing; the Union and the N.L.R.B. cancelled the election the
day after this meeting, December 15, because charges had been filed before the N.L.R.B. (G.C. 65).

16

witnesses was not “inherently incredible” and thus, cannot be rejected on that basis. See Anderson
v. Bessemer City, 470 U.S. 564, 575 (1985)("the story itself may be so internally inconsistent or
implausible on its face that a reasonable fact finder would not credit it."); Schandelmeier-Bartels v.
Chicago Park District, 634 F.3d 376 (7th Cir. 2011)(a district court can disregard testimony if
reasonable persons could not believe it because it contradicts indisputable physical facts). See also
Latino, 58 F.3d at 315; Electro-Voice, supra, 83 F.3d at 1571; Geighy Chemical Corp. v. Allen, 224
F.2d 110, 114, n.5 (5th Cir. 1955). In the instant case, there is a more than negligible chance that the
ALJ will believe the Petitioner’s witnesses. It would be an error to deny the Petitioner relief simply
because of conflicting testimony and credibility issues – issues that exist in every case that goes to
trial. Compare Whitehead v. Bond, 634 F.3d 919 (7th Cir. 2012).
Maybe Zekas – a disgruntled former employee6 – did hear Plant Manager, Haya-Trueba,
through a gap in the wall between their offices, and he was speaking English to Ousley. Maybe he
did give Ousley t-shirts and a raise. Zekas said she sent the paperwork through to payroll; Petitioner
hasn’t pointed to any documentary evidence of that. [Dkt. #20, at 4]. While the ALJ might well not
credit some or all of this testimony, there’s at least some chance – a better than negligible chance –
that the ALJ will believe what the witness said she overheard, and “granting benefits with an eye
toward curbing union organization violates § 8(a)(1).” Electro-Voice, 83 F.3d at 1570.

6

Zekas testified that she was fired for being late for work too often but claimed she wasn’t aware
that she had been. (R. 41). Zekas is also the only witness from the administrative hearing to testify that HayaTrueba spit on or shoved employees every week, and that Chandler physically assaulted 15 different
employees. (R. 48-49). Exaggeration is not an indicia of truthfulness. Mei Zhen Huang v. Mukasey, 256
Fed.Appx. 406 (2nd Cir. 2007); United States v. Lopez, 2016 WL 7337548, at *3 (S.D. Tex. 2016); Gray v.
Michael, 2016 WL 6403509, at *9 (D. Md. 2016). Nor is implausibility. Electro-Voice, Inc., 83 F.3d at 1569.

17

Most of the petitioner’s focus is on the altercation between Frierson and Chandler and the
subsequent termination of Frierson. The pas-de-deux is described differently by the two men, but not
entirely. Of course, there is no certainty whom the ALJ will believe, and the difficult task of
assessing credibility of witnesses, as already explained, is not a part of the present exercise. We did
not see or hear the testimony, which is all important. But, overall, the testimony of the two men
indicates agreement that Frierson was milling around and Chandler told him to get back to work.
Rather than simply complying, Frierson delayed and began goading Chandler by playing the
obsequious underling, using language that all would interpret as racially charged and inflammatory
and provocative: “yes sir, boss . . . no sir, boss . . . anything else, boss.”7 Frierson, himself, basically
admitted his behavior. Chandler asked if Frierson thought he was funny, and issued a verbal warning.
Clearly, and contrary to the Petitioner’s assertions, discipline – especially the minor discipline
involved – was not “unwarranted.” [Dkt. # 22, at 11]. Frierson admitted conduct that was intended
to be provocative and insulting.
Although Frierson and the Petitioner concede that Chandler gave only a verbal warning,
Frierson decided to escalate things and demand a write-up. So he interrupted a meeting, and then
confronted Chandler in the office. By all accounts, the encounter was aggressive and confrontational,
with Chandler telling Frierson there had only been a verbal warning and Frierson demanding a writeup in any event. Plant Manager, Chandler, who explained the circumstances under which the
encounter with Frierson occurred, understandably felt threatened. The Petitioner never explains why,

7

Petitioner claims that this demonstrates that “at no point did Frierson refuse to follow a directive
of his supervisor or engage in insubordinate conduct.” [Dkt. #22, at 3]. But Frierson’s own testimony shows
that, when told to get back to work, rather than return to his work station, he went into his “yes sir, boss,”
“ no sir, boss,” “anything else, boss” routine before finally complying.

18

if, as is now conceded, the warning was merely verbal, Frierson, was so adamant and made a scene
about and demanded a write-up. Frierson’s behavior could not responsibly have been ignored, and
it is his behavior and the language he chose showed quite clearly he did not want it to be.
It seems more than a happy coincidence that the organizer from the union, Fulkerson, was
waiting for Frierson in the parking lot after this fateful shift. Of course, it may not been preplanned.
But the timing seems more then fortuitous, and a confrontation and a write-up of a union organizer
over nothing more than dawdling, for that is how it began, would serve a beneficial purpose in the
union campaign. Of course, all this is for the ALJ. But one thing is not open to serious question:
Frierson chose to exacerbate the situation and escalate the controversy at every opportunity. At any
point, it would seem, he could have not only have staved off being fired, but receiving any discipline
at all. When told to get back to his work station, he did not, choosing to mock Chandler in racially
charged and insulting and demeaning language. When given a verbal warning, he chose to confront
Chandler, and he demanded a higher degree of discipline: a write up. This was all Frierson’s doing
as all the witnesses in essence testified.
E.
Section 8(a)(3) of the National Labor Relations Act prohibits employers from terminating
employees “solely on the basis of their union activities or sympathies.” Electro-Voice, 83 F.3d at
1568 (citing 29 U.S.C. § 158(a)(3))(Emphasis supplied). Thus, the employer's motivation for
terminating an employee is critical to the determination whether the termination violates the NLRA.
Electro-Voice, 83 F.3d at 1568; N.L.R.B. v. So-White Freight Lines, Inc., 969 F.2d 401, 406 (7th
Cir.1992). The Petitioner has the burden of proving by a preponderance of the evidence that the
terminations were motivated by a desire to thwart protected activity. Chicago Tribune Co. v.
19

N.L.R.B., 962 F.2d 712, 716 (7th Cir.1992). If the Petitioner carries that burden, the burden shifts
to the employer to demonstrate by a preponderance of the evidence that it would have terminated the
employees irrespective of the protected activity. Id. at 718. See also, Electro-Voice, 83 F.3d at 1568;
Northern Wire Corp. v. N.L.R.B., 887 F.2d 1313, 1318 (7th Cir.1989).
There is no dispute that Chandler and management knew of Frierson’s involvement in the
union. At the same time, it was Frierson, not Chandler, who escalated the altercation to the point
of no return. That’s a problem for the Petitioner since the termination has to be motivated solely by
anti-union animus, as the Seventh Circuit held in Electro-Voice. The evidence supports the
conclusion that MTIL did have a more than sufficient, non-union reason to fire Frierson – namely,
his exceedingly insubordinate, aggressive and threatening behavior toward another worker and
toward one of MTIL’s managers. In Electro-Voice, the Seventh Circuit emphasized that the
circumstances surrounding Shaffer's termination were sufficiently distinct to warrant separate
consideration from other firings. Electro-Voice presented evidence that Shaffer “destroyed several
thousand dollars worth of equipment, and would have been terminated regardless of his union
activity.” 83 F.3d 1570 at n. 17. The Seventh Circuit “concur[ed] with the district court that the
Director ... failed to establish a better than negligible chance that an anti-union animus motivated
Shaffer's termination.” So too here.
But the Petitioner ignores all of this and insists that the firing of Frierson was illicit because
an individual who had had a physical altercation over a cellphone with a co-worker, who happened
to be his pregnant girlfriend, only received a 3-day suspension. Significantly, the girlfriend, who
apparently started the whole thing, received the same suspension as the boyfriend. (R. 51-53, 56).

20

The boyfriend was not fired because the Company needed him on the line. (R. 58).8 Also ignored is
the fact that both suspensions were recommended by Ms. Zakis, the Petitioner’s witness at the
hearing. It should be parenthetically noted that three other employees had previously been
discharged for fighting, while some others were merely disciplined. (R. 45). Chandler said that, in
his opinion, Frierson’s behavior was worse than the altercation over the cell phone. (R. 530). Of
course, the issue is not what Chandler believed, but whether an employer like MTIL is bound by an
earlier episodic disciplinary decision so that it could not issue any greater punishment to an employee
who had conducted himself as Frierson had without being subject to the kind of claim the Petitioner
is now making. While evidence of the earlier 3-day suspension may be relevant to the motive
underlying the discipline meted out to Frierson, it is not conclusive or limiting by any means. Nor
should it be.
Apart from the fact that comparisons are necessarily inexact, punishment in one setting does
not demand that it be repeated in a different setting, lest there be a finding of illicit motivation.
Infractions affecting multiple people and involving different and multiple forms of misconduct can
be treated differently than misconduct of a different nature. After all, to be an appropriate comparator
requires that the comparator be similarly situated to the person to whom the comparison is being
made, Hanners v. Trent, 674 F.3d 683, 692 (7th Cir. 2012), which, in this case, means they have a
“comparable set of failings....” Monroe v. Indiana Dep't of Transportation, 871 F.3d 495, 509 (7th
Cir. 2017). Here, MTIL could reasonably believe that the comparators were not similarly situated
for the reasons previously discussed. And finally, that MTIL may have seen the situations differently

8

We cannot make credibility judgments; but it maybe noted that the witness claimed that the father
had threatened to kill the baby over the cellphone. It was she who recommended the suspension. (R. 51-56).

21

than does the Petitioner does not mean the Petitioner has shown a better than negligible chance of
success on its claim that the firing had a prohibited motivation. Cf., Lord v. High Voltage Software,
Inc., 839 F.3d 556, 564 (7th Cir. 2016). Employers, it must be remembered, even have the
prerogative to be “shortsighted and narrowminded.”
Under the circumstances that exist in this case, where Frierson was intentionally
insubordinate and threatening to multiple people over a somewhat extended period of time and his
misbehavior was directed to management and workers alike, MTIL had ample reason for firing
Frierson unrelated to a desire to thwart or curtail union activity. As in Electro-Voice, Inc., “the
Director has failed to establish a better than negligible chance that an anti-union animus motivated
[the Frierson] termination.” 83 F.3d at n. 17.
F.
While the Petitioner has enough to show he has a “better than negligible” chance of
succeeding on the merits before the N.L.R.B., Spurlino Materials, 546 F.3d at 503 (7th Cir. 2008),
Electro–Voice, 83 F.3d at 1570 – it’s a particularly onerous burden – Whitaker By Whitaker, 858
F.3d at 1046 – his case is not especially strong. The testimony was equivocal or contradictory or,
some might find, in some instances, arguably implausible. Even if that were not the case, witnesses
for one side adequately disputed witnesses for the other. If this were Petitioner’s motion for
summary judgment, the motion would be denied. See Bloedorn, 276 F.3d at 287 (comparing process
to summary judgment proceeding). That’s because all, or nearly all of this case hinges on the
credibility of the various witnesses, see Orton Bell v. Indiana, 759 F.3d 768, 773 (7th Cir. 2014), a
matter beyond our statutory authority to resolve.

22

While the present case is not a motion for summary judgment, the nature of Petitioner’s case
means that he must make a stronger showing of irreparable harm if he is not granted the relief he
requests. Spurlino Materials, LLC, 546 F.3d at 500; Bloedorn, 276 F.3d at 286-87. First, we shall
apply that calculus to the Frierson termination. The Petitioner seeks an order requiring MTIL to
reinstate Frierson and submits that if relief is not granted, unionization will suffer irreparable harm.
Petitioner calls him “the primary Union leader [at] the facility.” [Dkt. #20]. Notably, in the 30-yearold case Petitioner relies upon to support Frierson’s reinstatement, Gottfried v. Frankel, 818 F.2d
485, 496 (6th Cir. 1987), the Petitioner presented evidence of the important role the fired employee
played in developing union support, as well as evidence of a drop in union membership. Id. at 496.
In Electro-Voice, one-third of the workforce in the Indiana plant was fired, which had a substantial
chilling effect on union activity in the Indiana plant. 83 F.3d at 1572. Here, nothing of the kind
occurred, and Petitioner directs the court to no evidence or testimony to suggest Frierson is the key
union organizer. Petitioner claims that, since his discharge, “[e]mployee attendance at organizing
meetings has significantly dwindled.” [Dkt. #20, at 11]. Petitioner points to some sign-in sheets
from October, November, and December of 2016, and one from March of 2017. Attendance at the
meetings prior to Frierson’s discharge was 8, 15, 8, 10, 17, 17, and 14. Afterward, it was 7 and 9.
(G.C. 74, 75). Arguably, a drop in attendance from an average of about 12 to an average of 8 is
“significant[].” But, as we point out in note 9 below, the evidence suggests an actual increase in
attendance following the termination of Frierson’s employment.9 In any event, one must be careful

9

Petitioner says union support has eroded “since [the alleged anti-union campaign in November .
. . .” [Dkt. # 20, at 11]. Attendance at meetings on October 25, 26, and November 2, 16 was 8, 15, 8, 15, and
10; attendance on November 30, and December 7 and 14, was 17, 17 , and 14. (G.C. 74). Contrary to the
Petitioner’s characterization, after November, support, or at least interest, actually rose.
continue...

23

of post hoc ergo propter hoc, which, as Judge Easterbrook reminds us, “is the name of a logical
fallacy, not a means to prove causation.” Loudermilk v. Best Palate Co., LLC, 636 F.3d 312, 314 (7th
Cir. 2011).
The only evidence as to union leaders at MTIL – evidence that petitioner does not cite [Dkt.
#20 at 12-14] – is a flyer listing Frierson, not as the primary union leader, but merely one of four.
(G.C. 73). Petitioner’s Reply Brief indicates, again without citation to the record, that Bendezu is
also a leader, making Frierson just one of five at a facility of 86 workers. [Dkt. #22, at 12, 14]. So,
the Petitioner provides the court with nothing that shows that the termination of Frierson is the
“disappearance of the ‘spark to unionize.’” Pye ex rel. N.L.R.B. v. Excel Case Ready, 238 F.3d 69,
75 (1st Cir. 2001). Based on the evidence, Frierson continues to attend organizational meetings.
(G.C. 75). Petitioner has simply not made a sufficient showing, let alone a strong enough showing,to
balance the weaknesses of its case regarding Frierson, that the absence of Frierson on the plant floor
will do irreparable harm to efforts at unionization.
Petitioner contends what Frierson did is protected under a 40-year-old N.L.R.B. case,
Atlantic Steel Co., 245 N.L.R.B. 814 (1979), because he is a union activist. But that’s more than a
stretch, and taken to the limits of its logic the argument would insulate a union worker simply by
virtue of that status. In Atlantic Steel, the Board looked at four factors to determine if the discharged
employee has lost the protection of the Act: (1) the place of the discussion; (2) the subject of the
discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any way,

9

...continue
In Lineback v. Printpack, Inc., 979 F. Supp. 831, 849 (S.D.Ind. 1997), the evidence showed that the
defendant’s conduct “was a dramatic public, and powerful attack against union activities.” Indeed, the
company fired Hancock “for protected acts that he performed as the union President.” The firing of Frierson
is not in any way comparable to what occurred in that case. Quite the contrary.

24

provoked by the employer. 245 N.L.R.B. at 816. At the time, Frierson wasn’t engaged in protected
activity. He had been given a verbal warning when, rather than return to his work area when
directed, he went into his taunting “yes, boss; no, boss” routine. Again, clearly, the verbal warning
was warranted. Unsatisfied with a verbal warning, Frierson escalated the situation on his own
volition by demanding a written warning. This was in no way provoked by Chandler; Chandler
reminded Frierson it had only been a verbal warning.
The balance of the Petitioner’s case – essentially, allegations of threats and rewards – is a
question of one side’s word against another’s, which would put it in the very ordinary range of most
cases. As such, the Petitioner does not have to make as strong a showing of no adequate remedy at
law/irreparable harm as it does with its claim for reinstatement of Frierson. The Petitioner asks for
an interim order requiring MTIL to bargain in good faith with the union. The remedy stems from
the Supreme Court’s holding in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 614, (1969). There,
the Court held that if “at one point the union had a majority” and the employer has engaged in unfair
labor practices “to undermine majority strength and impede the election processes,” then the
N.L.R.B. can consider issuing a “bargaining order.” Such an order requires the employer to
negotiate with the union, foregoing the normal election procedures in which the union must
demonstrate its majority status. John Cuneo, Inc. v. N.L.R.B., 459 U.S. 1178, 1178–80 (1983).
Gissel cautioned that this remedy was to be used sparingly, in situations where the N.L.R.B. “finds
that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair
rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once
expressed through cards would, on balance, be better protected by a bargaining order. Gissel, 395
U.S. at 614-615.
25

First, though, there has to be some evidence that the union has a chance with the employees.
The Petitioner submitted 57 authorization cards out of a possible 86 employees to demonstrate
majority support. See Gissel, 395 U.S. 575, 614 (1969); N.L.R.B. v. Orland Park Motor Cars, 309
F.3d 452, 455–56 (7th Cir. 2002). MTIL contends that a number of the cards are invalid for one
reason or another, but the ALJ admitted them into the record over MTIL’s objections. MTIL points
us to no case that suggests a district court in a 10(j) proceeding can overturn evidentiary rulings made
by the ALJ. That’s not surprising given the limited role the district court has in this proceeding:
predicting how the ALJ and then the Board will rule. If the ALJ already admitted the cards into
evidence, it seems unlikely indeed that MTIL will persuade her to change her mind.
The question then becomes whether the alleged unfair labor practices in this case are enough
to warrant the relief the Petitioner seeks. The types of violations here – threats of relocation or
closing, offers of benefits – are of the type that courts consider detrimental enough to the union
election processes to warrant relief that brings a return to the status quo. But the Petitioner’s
argument is a bit exaggerated when he says that “[t]he Seventh Circuit has consistently upheld a
Gissel bargaining order when presented with facts that are present in this case.” [Dkt. # 20, at 11].
The evidence here suggests two meetings where plant relocation and drug tests were threatened, and
a union-organizer employee was terminated. But, for the most part, the cases the Petitioner likens
this case to involved more serious or more pervasive violations and more compelling evidence. See
N.L.R.B. v. Intersweet, Inc., 125 F.3d 1064 (7th Cir. 1997)(en masse firings); Electro-Voice, Inc.,
83 F.3d 1559 (interrogation of employees about union supporters, firing those supporters under a
vague absenteeism policy, soliciting grievances, threatening plant closure, mass firing of one-third
of work force); Am.'s Best Quality Coatings Corp. (ABQC) v. N.L.R.B., 44 F.3d 516 (7th Cir.
26

1995)(threats by supervisors to be carried out in the event that the Union prevailed, i.e.,
interrogations, layoffs, withholding of benefits and a refusal to bargain); Q-1 Motor Exp., Inc., 25
F.3d at 473(management repeatedly threatened drivers with shutdown and reopening with new
employees rather than allow the drivers to unionize, interrogating drivers and one driver’s spouse
about the union organization efforts and made explicit and implicit threats of retaliation).
Still, at least one case where the Seventh Circuit upheld a Gissel order does have a similar
fact pattern: N.L.R.B. v. Gerig's Dump Trucking, Inc., 137 F.3d 936, 942 (7th Cir. 1998). There, the
president made a threat of selling the company, told a striking employee he could only come back
to work if he brought everyone with him, and offered benefits in a letter. As such, Petitioner has
shown enough.
G.
The interest at stake in a §10(j) proceeding is the public interest in the integrity of the
collective bargaining process. Am. Red Cross, 714 F.3d at 557; Francisco Foods, 276 F.3d at 300.
Where we have evidence of anti-union conduct and erosion of support, a more thorough analysis is
unnecessary. Am. Red Cross, 714 F.3d at 557. The only harm to the public interest that MTIL seems
concerned with, however, is the reinstatement of Frierson, and that issue has already been dealt with
before.
CONCLUSION
The Petition of the Regional Director of Region 13 of the National Labor Relations Board
for Preliminary Injunction under Section 10(j) of the National Labor Relations Act is granted in part
and denied in part consistent with the holdings above. The parties shall submit to the court a
Preliminary Injunction that complies with this Opinion and the requirements of Rule 65(d), Federal
27

Rules of Civil Procedure, within seven days of this Opinion.

ENTERED:
UNITED STATES MAGISTRATE JUDGE

DATE: 11/14/17

28