Boren v. Continental Linen Services, Inc.

Filing 19

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kad)

B o r e n v. Continental Linen Services, Inc.

D o c . 19

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

D E N N IS BOREN, P e titio n e r, File No. 1:10-CV-562 v. H O N . ROBERT HOLMES BELL C O N T IN E N T A L LINEN SERVICES, INC., R e sp o n d e n t. / OPINION T h is matter comes before the Court on Petitioner Dennis Boren's petition on behalf o f the National Labor Relations Board ("NLRB"), for interim injunctive relief pursuant to N L R A § 10(j) requiring Respondent to: (1) allow the Chicago Regional Midwest Joint B o a rd , Workers United/SEIU ("Joint Board") access to Respondent's plant and employees to process grievances; (2) bargain with the Joint Board in good faith; and (3) provide in f o rm a tio n for contract negotiations. (Dkt. No. 1.) For the reasons that follow, this petition w ill be granted in part and denied in part. I. U n til 2004, Local 151 was the undisputed exclusive bargaining representative for R e sp o n d e n t, Continental Linen Services, Inc. (CLS). Following a series of mergers, Local 1 5 1 merged with the affiliation of the Union of Needle trades, Industrial and Textile E m p lo ye e s ("UNITE") and the Joint Board in 2002. Shortly after 2004, Local 151

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e f f e c tiv e ly became defunct. In the meantime, Joint Board representatives, on behalf of the J o in t Board/UNITE affiliation, negotiated and signed the 2005-2010 bargaining agreement a n d administered it on a day-to-day basis. However, when the Joint Board disaffiliated with U N IT E in early 2009, CLS barred Joint Board representatives from its premises and refused to bargain for a new collective bargaining agreement, claiming that it would not let any union o n to its premises until the Joint Board and UNITE decided who was CLS's NLRA § 9(a) e x c lu s iv e representative. As a result, the Joint Board filed charges with the NLRB on August 6, 2009, February 8 , 2010, and March 17, 2010, alleging, inter alia, that CLS was engaged in unfair labor p rac tice s in violation of NLRA §§ 8(a)(1) and (5). (Dkt. No. 1.) These allegations were c o n so lid a te d by the NLRB's Regional Director and heard before an administrative law judge o f the NLRB on April 13, 2010. Cont'l Linen Servs., Inc., Nos. 7-CA-52296, 7-CA-52715, a n d 7-CA-52798 (NLRB filed Apr. 13, 2010). Petitioner filed this petition on June 11, 2010. (D k t. No. 1.) II. S e c tio n 10(j) of the NLRA authorizes district courts to grant preliminary injunctions p en d ing the NLRB's adjudication of unfair labor practice cases. 29 U.S.C. § 160(j). H o w e v e r, in carrying out their analysis, district courts are not authorized to adjudicate the m e rits of unfair labor practice cases. Fleischut v. Nixon Detroit Diesel, 859 F.2d 26, 28 (6th C ir. 1988) (citing Levine v. C & W Mining, Inc., 610 F.2d 432, 435 (6th Cir. 1979)). To a w a rd injunctive relief: 2

[T ]he district court must make two findings. First, the court must find there is "reasonable cause" to believe that the alleged unfair labor practice has o c c u r re d . Second, if such reasonable cause is found to exist, the court must th e n determine whether injunctive relief is "just and proper." C a la tr e l lo v. Automatic Sprinkler Corp. of Am., 55 F.3d 208, 212 (6th Cir. 1995). It is im p o r ta n t to clarify that the Sixth Circuit "has consistently used the `reasonable cause/just a n d proper' standard" for § 10(j) injunctive relief, unlike other circuits which have "instead a d o p t[ e d ] the `traditional' test." 1 Ahearn v. Jackson Hosp. Corp., 351 F.3d 226, 235-36 (6th C ir. 2003) (internal citations omitted). T o determine if "reasonable cause" exists, a district court must resolve a question of la w and a question of fact. Ahearn, 351 F.3d at 234; Gottfried v. Sheet Metal Workers' Int'l A s s 'n , Local Union 80, 927 F.2d 926, 928 (6th Cir. 1991). The question of law is whether a legal theory exists that is "substantial and not frivolous." Kobell v. United Paperworkers In t'l Union, 965 F.2d 1406, 1407 (6th Cir. 1992); Fleischut, 859 F.2d at 29; Gottfried v. F r a n k e l, 818 F.2d 485, 493 (6th Cir. 1987). However, a petitioner "need not convince the c o u rt of the validity of [his] theory of liability." Frankel, 818 F.2d at 493. The second q u e stio n is whether there is evidence in support of the petition. This is a "`relatively in s u b s ta n tia l' burden in that [a petitioner] need not prove that an unfair labor practice had o c c u rre d , but must only produce some evidence in support of the petition." Id. (citing
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The traditional test consists of four prongs: (1) whether the moving party has a substantial or strong likelihood of success on the merits; (2) whether the moving party would otherwise suffer irreparable injury; (3) whether the issuance of a preliminary injunction would cause substantial harm to others; and (4) whether a preliminary injunction would serve the public interest. Ahearn, 351 F.3d at 234 (citing Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000)). Ahearn explicitly disagrees with applying this test to § 10(j) petitions. Id. 3

L e v in e v. C & W Mining, Inc., 610 F.2d 432, 435 (6th Cir. 1979)). "[A] district court `need n o t concern itself with resolving conflicting evidence if facts exist which could support [a p e titio n e r's ] theory of liability.'" Kobell, 965 F.2d at 1407 (quoting Fleischut, 859 F.2d at 2 9 ). T o determine if a preliminary injunction is "just and proper," "the legal standard a d is tric t court must apply is whether such relief is `necessary to return the parties to status quo p e n d in g the [NLRB's] proceedings in order to protect the [NLRB's] remedial powers under th e NLRA, and whether achieving status quo is possible.'" Id. (quoting Frankel, 818 F.2d at 495). "The district court, however, must be careful that the relief granted is not simply f u n c tio n in g as a substitute for the exercise of the [NLRB's] power." Fleischut, 859 F.2d at 2 9 (citing Frankel, 818 F.2d at 494). While the Third Circuit has introduced the idea that "a p re m is e underlying section 10(j) may be the understanding that 10(j)'s use is reserved for e x tra o rd in a ry cases," the Sixth Circuit has questioned "whether this implicit premise is a c tu a lly present given Congress' use of the less than stringent `just and proper' standard." F le is c h u t, 859 F.2d at 30 n.4.2

Respondent mischaracterizes Fleischut as supporting the Third Circuit's decision to reserve 10(j) injunctions for extraordinary cases, which is espoused in Kobell v. Suburban Lines, Inc., 731 F.2d 1076, 1091 n.26 (3rd Cir. 1984). (Dkt. No. 15, at 13.) Fleischut actually criticizes this decision in Kobell. 4

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I I I. A . Reasonable Cause P e titio n e r's legal theory is that Local 151 transferred its § 9(a) representative status to the Joint Board/UNITE affiliation and that the Joint Board retained that § 9(a) status after d i sa f f i lia tio n from UNITE. This legal theory is "substantial and not frivolous," regardless o f its validity. It is agreed that Local 151 was the exclusive representative of Respondent p rio r to the 2005 collective bargaining agreement. (Dkt. No. 2, Attach. B, Jt. Ex. 26, Stip. ¶ 1; Barb Lipsey Test. 151-52.)3 However, while a "representative may delegate its duties u n d e r a contract, it cannot delegate its responsibilities." Goad Co., 333 NLRB 677, 680 (2 0 0 1 ). "[L]iab[ility] for the acts of subordinates" is an impermissible responsibility to d e le g a te . See Reading Anthracite Co., 326 NLRB 1371 (1998). If a transfer of bargaining re sp o n s ib ility occurs, in violation of § 9(a), there is a six-month window to challenge the v a lid ity of the transfer: "no complaint shall issue based upon any unfair labor practice o c c u rrin g more than six months prior to the filing of the charge with the Board." NLRA § 10(b). Petitioner has introduced evidence in support of his theory, satisfying his "relatively insu b stan tial" burden. Despite the fact that Local 151 "handled everything ourselves before U N IT E come [sic] in and merged with our union," Local 151 did not negotiate the 2005

Cited attachments A, B, C, and D are found in Dkt. No. 2. Attachment A is testimony from the hearing before the NLRB, Attachment B includes joint exhibits and general counsel exhibits, and Attachments C and D are CLS employee affidavits. 5

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c o l le c tiv e bargaining agreement nor take any part in administering it on a day-to-day basis.4 (L ip s e y Test. 147, 158-161.) Rather, representatives of the Joint Board handled all of the re s p o n s ib i l i t i e s . (Id.) Local 151 also no longer held membership meetings, conducted e le c tio n s for officers, or possessed a bank account or funds. As Local 151 essentially ceased to exist, it could not have retained its responsibilities. As the Joint Board/UNITE affiliation w a s carrying out Local 151's former functions, it could be considered the successor to Local 1 5 1 's duties and responsibilities. While Respondent was not officially made aware of this transfer, Petitioner argues it w as constructively aware, at the very latest in 2007 when it signed an agreement to reaffirm th e collective bargaining agreement which did not mention Local 151, and which Local 151 re p re se n tativ e s played no role in negotiating and signing. (Jt. Ex. 8; Monje Test. 68.) While R e sp o n d e n t is correct that contractual language alone cannot support the replacement of a re c o g n iz e d bargaining representative, the language of that reaffirmation agreement coupled w ith the fact that Local 151 went from negotiating and administering collective bargaining a g re e m e n ts to handling virtually nothing in 2005 is "some evidence" that CLS was aware. (D k t. No. 15, Br. in Opp'n to Pet. 19-20.) T h e re is also evidence that following the Joint Board's disaffiliation from UNITE, the J o in t Board retained its § 9(a) representative status. Following the affiliation or

Lipsey would occasionally file a grievance which she would turn in to the Joint Board who then handled it, but this was an activity that she declared "even a union steward does." (Lipsey Test. 172-73.) 6

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d is a f f ilia tio n 5 of an exclusive bargaining representative, "the Board cannot discontinue that re c o g n itio n without determining that the affiliation raises a question of representation." N L R B v. Fin. Employees Local 1182 (Seattle-First), 475 U.S. 192, 202-03 (1986). To d e t e r m i n e if there is a discontinuity of representation between the old and new bargaining re p re se n ta ti v e , the Court must consider three factors: (1) continued leadership

r e sp o n s ib i litie s by existing union officials; (2) perpetuation of membership rights and duties, th e dues/fees structure, frequency of membership meetings, and the continuation of the m an n er in which contract negotiations, administration, and grievance processing are e f f e c tu a te d ; and (3) the preservation of the union's physical facilities, books, and assets. W. C o m m e rc ia l Transp., Inc., 288 NLRB 214, 217 (1988). Petitioner has introduced evidence that the leadership of the Joint Board after its d is a f f ilia tio n from UNITE and subsequent affiliation with Workers United remained u n c h a n g ed . (Monje Test. 71-72.) Similarly, there was no change in membership rules, dues le v e ls , or in the governing documents of the Joint Board, other than an amendment to the J o in t Board's constitution which deleted references to UNITE. (Id. at 69.) The Joint Board's m a in office remained at the same location in Chicago, and while the location of the office in Detroit changed, the Joint Board still maintained a Detroit office. (Id. at 73-74.)

F u rth e rm o re , the future relationship between CLS and the Joint Board would remain largely u n ch an g ed because, as the parties stipulated, it had been representatives of the Joint Board

While the principles stem from affiliation cases, they are also applicable to disaffiliation. Canterbury Villa, 282 NLRB 462, 464-65 (1986). 7

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w h o negotiated the 2005 collective bargaining agreement, conducted the ratification vote, a d m in is te re d the agreement on a day-to-day basis, received union fees and dues, investigated a n d processed grievances, met with Respondent's human resources manager, and appointed s te w a rd s and members of the bargaining committee. (Jt. Exs. 7, 26; Monje Test. 60-68; L ip se y Test. 154-55, 158-59.) Furthermore, the Joint Board has made efforts to continue this rep rese n tatio n even after the disaffiliation. (Jt. Exs. 13, 15.) UNITE, on the other hand, cannot claim that its leadership responsibilities have re m a in e d unchanged since the disaffiliation because of its complete reliance on the Joint B o a rd to represent and service CLS. As evident in the record, UNITE's own representatives p l a ye d no role in negotiating or administering the 2005 agreement. To continue as CLS's b a rg a in in g agent after the disaffiliation, UNITE would have to introduce CLS to an entirely n e w staff of representatives. (Monje Test. 60-61, 64-67.) Nor did anyone from UNITE, f o llo w in g its disaffiliation from the Joint Board, show up at Respondent's plant to attempt to represent CLS employees, process grievances, or enforce the collective bargaining a g re e m e n t. (Sarah Wrubel Test. 44-45.) Respondent cites the nominal President of Local 1 5 1 , Barb Lipsey's, testimony in an attempt to prove that despite this evidence, "UNITE . . . d id everything." (Br. in Opp'n to Pet. 23.) However, Barb Lipsey testified, in this instance an d others, that she was mistakenly using the term UNITE to refer to Joint Board r e p re s e n ta tiv e s because of confusion over the actual affiliation of the representatives. (L ip s e y Test. at 156, 166-67.)

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A s Petitioner has a substantial legal theory and has produced evidence in support, he h a s met his reasonable cause burden. B . Just and Proper P e titio n e r first argues that preliminary injunctive relief is just and proper to prevent C L S 's employees from losing the benefit of union representation. While the Court is c o g n i z a n t that a denial of a preliminary injunction could result in harm to CLS's employees, th e Sixth Circuit does not consider harm to employees when determining whether a § 10(j) in ju n c tio n is just and proper. Calatrello v. Automatic Sprinkler Corp. of Am., 55 F.3d 208, 2 1 4 n.5 (6th Cir. 1995) ("[W]e do not consider the degree of irreparable harm to the unions a n d employees in § 10(j) determinations in this Circuit."). Moreover, the Court is unwilling to speculate that CLS's employees are suffering irreparable harm, especially considering that a n y unjustified disciplinary action that may occur can be remedied by a later ruling of the N L R B , providing, inter alia, back-pay and injunctive relief. See Calatrello v. Am. Church, In c ., No. 1:05-CV-797, 2005 WL 1389042, at *4 (N.D. Ohio June 9, 2005). P e titio n e r also argues that a preliminary injunction is necessary because employee s u p p o rt for the Joint Board is irretrievably eroding as a result of the Joint Board having no p re se n c e at the plant. The Sixth Circuit will take into account erosion of employee support, b u t only for the purpose of assessing whether the NLRB will retain its remedial power. See F r y e v. Specialty Envelope, Inc., 10 F.3d 1221, 1226-27 (6th Cir. 1993) (finding that in the a b se n c e of union representation there was a significant danger that employee support would

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e ro d e to such an extent that the final remedy which the NLRB could impose would be in e f fe c tiv e ) (quoting Asseo v. Centro Medico del Turabo, 900 F.2d 445, 454 (1st Cir. 1990)). In support of his proposition, Petitioner cites an off-site meeting the Joint Board a tte m p te d to hold on March 10, 2010, to discuss Respondent's refusal to negotiate a s u c c es s o r contract. The Joint Board handed out flyers encouraging employees to attend the m e e tin g and declaring that Respondent was denying the Joint Board access to the plant and re f u sin g to process grievances. (Gen. Counsel Ex. 9.) Despite handing out these flyers, only s ix of eighty-four employees showed up. (Dkt. No. 6, Am. Br. of Pet'r 30.) Petitioner a ttrib u te s this poor turnout to Respondent telling employees that "everything on the flyer was a ll lies." (Attach. C, Charles Hunter Aff. 3-4.) The Joint Board has also introduced a f f id a v its from employees stating that Respondent threatened to fire anyone caught with the u n io n flyer or passing it out. (Id. at 2; Attach. D, Robert Kurtycz Aff. 2.) There is also u n c e rta in ty among the employees over whether they even have a union, and some have in d ic a te d their belief that the Joint Board is a "fake union" that is "just taking our union d u es." (Kurtycz Aff. 4.) It is true that there is no evidence that these employees would be unwilling or unlikely to support the union if the NLRB determines that recognition was illegally withdrawn. See A m . Church, Inc. 2005 WL at *4. However, "Congress passed § 10(j) upon finding that . . . th e Board's remedial powers are not always sufficient to overcome the passage of time." G la ss e r v. Heartland - Univ. of Livonia, MI, LLC, 632 F. Supp. 2d 659, 673 (E.D. MI 2009).

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If a threat of irreparable erosion of employee support exists, an injunction is necessary to e n su re that the NLRB's final remedy is effective: There was a very real danger that if [the employer] continued to withhold re c o g n itio n from the Union, employee support would erode to such an extent th a t the Union could no longer represent those employees. At that point, any f in a l remedy which the Board could impose would be ineffective. Asseo, 900 F.2d at 454 (quoted in Frye, 10 F.3d at 1226-27). While the Court recognizes th a t Petitioner's evidence is not conclusive, it is enough to warrant the issuing of a p re lim in a ry injunction. See Calatrello v. Carriage Inn, No. 2:06-CV-697, 2006 U.S. Dist. L E X IS 80918, at *23 (S.D. Ohio Nov. 6, 2006) (finding that an employee's testimony c o n stitu ted "some evidence that erosion of Union support may have occurred and/or is o c c u rr in g " which was enough for the court to find injunctive relief just and proper). In response, Respondent argues that the Joint Board's current limited support is a re su lt of it never having the support of employees in the first place. (Br. in Opp'n to Pet. 282 9 .) The Court's ability to issue a preliminary injunction to prevent erosion of support is c o n tin g e n t on a finding of prior employee support: U p o n finding reasonable cause to believe that unfair labor practices have o c c u rre d a district court may grant injunctive relief, including an interim b a rg a in in g order, upon a further finding that, at some point, a union had m a jo r ity support which the unfair labor practices threatened to erode during th e normal process of Board determination and court enforcement. L ev in e v. C & W Mining Co., 610 F.2d 432, 436 (6th Cir. 1979) (emphasis added). R e sp o n d e n t cites an affidavit of Barb Lipsey who avers that no union meetings have occurred s in c e 2005, other than the meeting on March 10, 2010. (Id., Attach. 2, Lipsey Aff. ¶ 5.) 11

H o w e v e r, a lack of union meetings does not indicate a lack of employee support. The a c ce p ta n c e of the 2005-2010 collective bargaining agreement makes it clear that there was m a jo rity support for union representation. Moreover, every indication is that there was m a jo rity support for the Joint Board to, at a minimum, act as a union agent. Therefore, while th e Court makes no ruling regarding whether the Joint Board or UNITE is the § 9(a) rep rese n tativ e, it deems a preliminary injunction appropriate to preserve employee support fo r union representation in general. However, the Court is hesitant to grant a preliminary in ju n c tio n that does more than is necessary to retain the NLRB's remedial powers. Before issuing an injunction, the Court must also determine whether achieving the s ta tu s quo is possible. In this case, allowing Joint Board representatives access to the plant w ill return the status quo that existed before CLS refused to recognize the Joint Board, which w a s, "representatives of the Joint Board administer[ing] the collective bargaining agreement o n a day-to-day basis." (Jt. Ex. 26, ¶ 8.) Forcing CLS to bargain with the Joint Board, on th e other hand, would not be a return to the status quo and would give the Joint Board an u n f a ir advantage should the NLRB ultimately decide the dispute with an employee election. M o re o v e r, the Court is especially reluctant to enter an order to bargain, because such an order m a y cause significant financial burden to Respondent. C. Conclusion W h ile the Court is hesitant to enter into a dispute that is in the NLRB's domain, it is c o m p e lle d to make a decision as a result of the NLRB's lack of alacrity in issuing a ruling

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o n a matter that demands haste. In doing so, the Court reminds the NLRB of the requirement t o "expedite its administrative action after obtaining a temporary injunction." Levine v. C & W Mining Co., 610 F.2d 432, 437 (6th Cir. 1979). If the NLRB fails to expedite its action, it risks the "temporary injunction, entered without reaching the ultimate merits of [the] d is p u te [becoming], in effect, a final disposition of the controversy." Eisenberg v. Hartz M o u n ta in Corp., 519 F.2d 138, 144 (3d Cir. 1975) (quoted in Id.). T h e Court is also hesitant to issue the extraordinary remedy of a preliminary injun ctio n in a non-emergency situation. Nevertheless, as established supra, the Sixth Circuit d o e s not reserve § 10(j) relief for extraordinary cases, and only requires a petitioner to meet th e lesser burden of showing that reasonable cause exists and that the remedy is just and p ro p e r. As a result of its analysis, the Court finds that Petitioner has met his burden of e sta b lis h in g reasonable cause that an unfair labor practice has occurred. The Court further f in d s that it is just and proper to issue a limited preliminary injunction requiring CLS to allow J o in t Board representatives access to their employees and plant to process grievances and rep rese n t employees, under the terms of the 2005 collective bargaining agreement. However, th e Court does not find it just and proper to require CLS to bargain with the Joint Board or p ro v id e information for contract negotiations. Nor will dues have to be paid to the Joint B o a rd ; these dues may be kept in escrow until the NLRB issues its decision.

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F o r the reasons stated herein, Petitioner's petition is granted in part and denied in part. A n order consistent with this opinion will be entered.

Dated: July 23, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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