Walsh, Jr. v. Liberty Bakery Kitchen, Inc.

Filing 40

Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered granting in part and denying in part 3 Motion for Preliminary Injunction. Within 21 days of the issuance of this order, Defendant is to file with the Court, along with a copy to the Regio nal Director of Region One, a sworn affidavit from a responsible official of the Employer setting forth with specificity the manner in which Defendant has complied with the terms of this order, including how and when it posted the documents required by this order. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOHN J. WALSH, JR., Regional Director,
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Region 01, National Labor Relations Board,
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for and on Behalf of the NATIONAL LABOR
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RELATIONS BOARD,
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Plaintiff,
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v.
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LIBERTY BAKERY KITCHEN, INC.,
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Defendant.

Civil Action No. 17-cv-10721-ADB

MEMORANDUM AND ORDER GRANTING
MOTION FOR PRELIMINARY INJUNCTION
BURROUGHS, D.J.
Plaintiff John Walsh, on behalf of the National Labor Relations Board, filed a complaint
[ECF No. 1] and motion seeking a preliminary injunction [ECF No. 3] pursuant to Section 10(j)
of the National Labor Relations Act (hereinafter “NLRA”), 29 U.S.C. § 160(j). The crux of the
case is Walsh’s allegation that Defendant Liberty Bakery Kitchen, Inc. unlawfully withdrew
recognition from the drivers’ union in violation of Sections 8(a)(1) and (5) of the National Labor
Relations Act, 29 U.S.C. § 158. The Court held a hearing on the preliminary injunction motion
on June 29, 2017. For the reasons set forth more fully in the hearing, the motion for a
preliminary injunction is GRANTED in part.
In evaluating a 10(j) petition, the Court must consider two factors: “whether (1) the
Board has shown reasonable cause to believe that the defendant has committed the unlawful
labor practices alleged, and (2) whether injunctive relief is, in the language of the statute, ‘just
and proper.’” Pye ex rel. NLRB v. Sullivan Bros. Printers, 38 F.3d 58, 63 (1st Cir. 1994). “In
assessing whether the Board has shown reasonable cause, the district court need only find that

the Board’s position is ‘fairly supported by the evidence.’” Id. (quoting Asseo v. Centro Medico
Del Turabo, 900 F.2d 445, 450 (1st Cir. 1990)). To prove that injunctive relief is “just and
proper,” the district court must apply the traditional four-part test for preliminary relief. Id.
Those factors are: “(1) A likelihood of success on the merits; (2) The potential for irreparable
injury in the absence of relief; (3) That such injury outweighs any harm preliminary relief would
inflict on the defendant; and (4) That preliminary relief is in the public interest.” Id.
As an initial matter, the Court has determined that the Board has shown “reasonable
cause” to believe that Defendant has committed unfair labor practices, because the allegation is
“fairly supported by the evidence” adduced at the hearing before the Administrative Law Judge
(“ALJ”) on January 31 and February 2, 2017. [ECF Nos. 2, 33].
Next, the Court has determined that injunctive relief is “just and proper” by applying the
four-factor preliminary injunction test.
First, Plaintiff is likely to succeed on the merits, most importantly because the ALJ issued
a ruling in favor of the Board on May 25, 2017. [ECF No. 33]. In a thorough opinion, the ALJ
determined that Defendant lacked objective evidence of an actual loss of majority support at the
time it withdrew recognition from the union. [ECF No. 33 at 1]. The ALJ’s decision does not
necessarily reflect the Board’s final administrative ruling, which itself may be appealed.
Nevertheless, the ALJ opinion strongly supports Plaintiff’s case and is a good indicator that he is
likely to succeed.
Second, the potential for irreparable harm in the absence of relief favors Plaintiff,
because even if the union enjoyed majority support at the time of the withdrawal of recognition,
that support is likely to atrophy while the agency process is ongoing. In a similar case, the First
Circuit recognized that “there was a very real danger that if [the employer] continued to withhold

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recognition from the Union, employee support would erode to such an extent that the Union
could no longer represent those employees. At that point, any final remedy which the Board
could impose would be ineffective.” Centro Medico, 900 F.2d at 454. “As time passes, the
benefits of unionization are lost and the spark to organize is extinguished. The deprivation to
employees from the delay in bargaining and the diminution of union support is immeasurable.”
NLRB v. Electro-Voice, Inc., 83 F.3d 1559, 1573 (7th Cir. 1996).
Third, the balance of the hardships favors Plaintiff, because in the absence of injunctive
relief, Defendant would reap the benefit of having committed unfair labor practices while the
union would be forced to wait for reinstatement, with its support waning in the interim.
Furthermore, as some courts have noted, “when the [employer] is not compelled to do anything
except bargain in good faith, the risk from a bargaining order is minimal.” Small v. Avanti
Health Sys., LLC, 661 F.3d 1180, 1196 (9th Cir. 2011) (internal quotation marks omitted). The
employer is not required “to do anything that would cause it harm; it need do nothing more than
follow the ordinary obligations of an employer under the law.” Id. If the employer is ultimately
successful, it would have suffered the “financial and administrative costs of good faith
bargaining; these costs, however, are borne by both the union and the employer and are
comparatively minor.” Id.
Fourth, the public interest supports granting preliminary relief, because “the public has an
interest in ensuring that the purposes of the [NLRA] be furthered.” Asseo v. Pan Am. Grain Co.,
805 F.2d 23, 28 (1st Cir. 1986).
Finally, as the Court noted during the motion hearing, although the interests of the union
and the employer are represented in this case, no party speaks for the drivers. Plaintiff is likely to
prove that Defendant violated the NLRA by mishandling the procedure for the withdrawal of

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recognition, but the Court is mindful that the union may not in fact have enjoyed actual majority
support at the time Defendant withdrew recognition. For that reason, the Court is hesitant to
issue an open-ended injunction. Thus, the Court will issue a preliminary injunction for a period
of one year, in the hope that either the agency process will be close to complete by that time, or
that the parties will reach an agreement. The parties shall appear for a status conference on June
14, 2018 at 10:00 am, at which time the Court will determine whether to continue the injunction,
to order an election, or to grant any other such relief as the parties may request.
Accordingly, Plaintiff’s Motion for Preliminary Injunction [ECF No. 3] is GRANTED in
part, as follows:
IT IS HEREBY ORDERED that, from June 29, 2017 until June 29, 2018, Defendant
Liberty Bakery Kitchen, Inc. (“Defendant”), its officers, representatives, agents, servants,
employees, attorneys, successors and assigns, and all persons acting in concert or participation
with it or them, are enjoined and restrained from:
(a) Failing and refusing to recognize International Brotherhood of Teamsters, Local 653
(the Union), and to bargain collectively and in good faith with the Union as the exclusive
collective bargaining representative of the following unit of employees (the Unit):
All full-time and regular part-time drivers employed by Defendant at its 125 Liberty
Street, Brockton, Massachusetts facility; but, excluding office clerical employees, all
other employees, guards, and supervisors as defined in the Act.
(b) Failing and refusing to meet with the Union to negotiate an initial collective-bargaining
agreement covering the Unit.
(c) Questioning employees about their union membership, activities, sympathies and/or
support for the Union.

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(d) Asking employees to sign any document that requires them to take a position with
respect to, or otherwise indicate whether or not they support, the Union as their collectivebargaining representative.
(e) Granting wage increases to employees in an effort to influence their freedom of choice
about whether or not to support the Union as their collective-bargaining representative.
(f) Granting wage increases to employees, or implementing any other change in their terms
or conditions of employment, without first notifying the Union and, at the Union’s request,
bargaining over the proposed change.
(g) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed in Section 7 of the National Labor Relations Act.
(h) In any similar manner refusing to bargain collectively and in good faith with the Union
as the exclusive collective-bargaining representative of the Unit.
IT IS FURTHER ORDERED that Defendant Liberty Bakery Kitchen, Inc. take the
following affirmative actions:
(a) Recognize and, on request, bargain with the Union as the exclusive representative of the
employees in the following appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody the understanding in a signed
agreement:
All full-time and regular part-time drivers employed by Defendant at its 125 Liberty
Street, Brockton, Massachusetts facility; but, excluding office clerical employees, all
other employees, guards, and supervisors as defined in the National Labor Relations
Act.

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(b) Within five days of the issuance of the this order, recognize and upon request, bargain
collectively and in good faith with the Union as the exclusive collective-bargaining
representative of the Unit.
(c) On the specific request of the Union, rescind the wage increase that went into effect on
November 19, 2016. This Order shall not be interpreted to require the rescission of the
wage increase absent the Union’s request.
(d) Within 14 days of the issuance of this order, post copies of this order in conspicuous
places in and about its facility, including all places where notices to employees are
customarily posted, and maintain for 60 consecutive days from the date of posting, copies
of the order.
(e) Within 14 days of the issuance of this order, notify the Union in writing that it
recognizes the Union as the exclusive representative of the employees in the Unit, that it
will continue bargaining with the Union concerning terms and conditions of employment of
the Unit, and that if an agreement is reached, it will embody the understanding in a signed
agreement.
(f) Within 21 days of the issuance of this order, file with the Court, along with a copy to the
Regional Director of Region One, a sworn affidavit from a responsible official of the
Employer setting forth with specificity the manner in which Defendant has complied with
the terms of this order, including how and when it posted the documents required by this
order.
SO ORDERED.
June 30, 2017

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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