GOONAN v. AMERINOX PROCESSING, INC.

Filing 49

OPINION. Signed by Judge Noel L. Hillman on 7/14/2021. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

THOMAS A. GOONAN,
Regional Director of the
Fourth Region of the NATIONAL
LABOR RELATIONS BOARD, for
and on behalf of the NATIONAL
LABOR RELATIONS BOARD,
Petitioner,
v.
AMERINOX PROCESSING, INC.,
Amerinox.
UNITED STATES OF AMERICA,
Intervenor.
APPEARANCES:
Lea F. Alvo-Sadiky
Alvina Swati
National Labor Relations Board
Fourth Region
100 Penn Square East, Suite 403
Philadelphia, PA 19107
On behalf of Petitioner
Daniel V. Johns
Kelly T. Kindig
Cozen O’Connor
457 Haddonfield Road
Suite 300
Cherry Hill, NJ 08002
On behalf of Respondent

1:21-cv-11773-NLH-KMW
OPINION

Christopher D. Dodge
Zachary A. Avallone
Trial Attorneys
United States Department of Justice Civil Division
Federal Programs Branch 1100 L Street NW
Washington, DC 20005
On behalf of the United States

HILLMAN, District Judge

Presently before the Court is the petition of Thomas A.
Goonan, Regional Director of the Fourth Region of the National
Labor Relations Board (“Board”), brought pursuant to Section
10(j) of the National Labor Relations Act, as amended, 29 U.S.C.
§ 160(j), 1 for injunctive relief pending the final disposition of
the matters pending before the Board on charges against Amerinox
Processing, Inc.

The Board contends that Amerinox has engaged

in, and is currently engaging in, conduct in violation of
Section 8(a)(1) and (3) of the Act regarding interference with
union activities.
The United States has intervened in this action because of
a discrete issue raised by Amerinox in its opposition to the
Board’s petition.

The Court held argument on June 25, 2021, and

permitted supplemental briefing.

Legislative history and case precedent commonly refer to this
section as Section 10(j). Likewise, 29 U.S.C. §§ 157–159 and
their subparts are referred to as Sections 7 through 9.
1

2

For the reasons expressed at the June 25, 2021 hearing, and
for the reasons set forth below, the Court will grant the
Board’s petition.
BACKGROUND 2
Amerinox is a New Jersey corporation that maintains a
facility in Camden, New Jersey, where it processes stainless
steel and aluminum by cutting and polishing coils for customers
based on particular specifications.

In April 2018, Amerinox’s

employees began an organizing campaign seeking representation by
the International Association of Sheet Metal, Air, Rail &
Transportation Workers, Sheet Metal Workers Local 19 (“Union”).
At that time, the Board contended that Amerinox coerced
employees, discharged union supporters, made unlawful
statements, and successfully quashed support for the Union.

The

Board further contended that Amerinox’s actions interfered with
employee free choice in the union representation petition and
the Board set aside the election results.

Amerinox’s conduct

led to a series of administrative complaints and settlement
agreements.

The last of these was a Formal Settlement approved

by the Board on February 4, 2020.

The Court recites the background facts from the Board’s amended
petition (Docket No. 14, 15), its brief in support of its
petition (Docket No. 3), and Amerinox’s brief in opposition
(Docket No. 26).
2

3

The Third Circuit enforced the Formal Settlement on April
23, 2020 (Circuit No. 20-1503).

As part of the Formal

Settlement, the election conducted in Case 04-RC-223800 was set
aside and provisions were made for a re-run election.

Prior to

the scheduling of that election, on May 4, 2020, the Union
requested to withdraw its election petition.

The Board contends

that it was partly because of the COVID-19 pandemic and partly
because the Union believed that employees would be unwilling to
vote for the Union at that time due to Amerinox’s prior actions.
The Board approved the withdrawal.
The Board represents that in October 2020, the Union
resumed its campaign to organize employees.

Eight employees

signed Union authorization cards as of October 19, 2020. 3

The

Board contends that on that same date, Amerinox forcefully
responded to the effort by discharging two main Union adherents
- Kyle George and Miguel Gonzalez - and laying off four
employees - Andrew Rodriguez, Keon Smith, Joseph Soto, and
Bernard Venable.

Five of the six employees who were terminated

had signed Union cards (Venable had not).

An authorization is a card or petition signed by an
employee indicating his or her desire to form a union at their
place of employment. The authorization cards can be signed
manually on paper or digitally through a link texted to an
employee’s cell phone.
3

4

The Board claims that these terminations violated the
National Labor Relations Act, specifically: Section 7, which
guarantees employees the right to form, join, or assist labor
organizations and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, 29 U.S.C. § 157; Section 8(a)(1), which makes it an
unfair labor practice for an employer “to interfere with,
restrain, or coerce employees in the exercise of that right,” 29
U.S.C. § 158(a)(1); and Section 8(a)(3), which provides that an
employer may not discriminate “in regard to hire or tenure or
any term or condition of employment to encourage or discourage
membership in a labor organization,” 29 U.S.C. § 158(a)(3).
Based on these alleged violations of the Act, the Union
filed four charges (two on October 30, 2020, another on February
1, 2021, and the fourth on April 8, 2021), which were
consolidated for consideration by an Administrative Law Judge of
the NLRB.

A hearing was held on May 5, 2021.

The decision of

the ALJ was issued on July 8, 2021. 4
Petitioner’s request for injunctive relief is still viable
because an ALJ’s decision has no final force or effect until
acted on by the Board. See Schaub v. West Michigan Plumbing &
Heating, Inc., 250 F.3d 962, 968 (6th Cir. 2001); Sharp v. Webco
Industries, Inc., 225 F.3d 1130, 1136 (10th Cir. 2000). In
accordance with the Board’s Rules and Regulations, Sec. 102.46,
Respondent has until August 5, 2021 to appeal the ALJ’s decision
to the Board, in which case Petitioner has the right to file an
answering brief and Respondent can then file a reply brief.
4

5

On May 26, 2021, the Board filed its instant petition.

The

Board seeks an injunction pursuant to § 160(j) of the Act, which
is typically referred to as a Section 10(j) petition, 5 which
authorizes the Board, “upon issuance of a complaint . . .
charging that any person has engaged in or is engaging in an
unfair labor practice,” to seek temporary injunctive relief from
the United States District Court for the District “wherein the
unfair labor practice in question is alleged to have occurred.”
Specifically, the Board seeks an order from this Court enjoining
Amerinox from the following pending final disposition of the
NLRB charges: (a) Discharging, laying off, or otherwise
discriminating against employees because of employees’ support
for the Union; (b) Informing employees that it will retaliate

5

Section 10(j) provides:
The Board shall have power, upon issuance of a complaint as
provided in subsection (b) charging that any person has
engaged in or is engaging in an unfair labor practice, to
petition any district court of the United States . . .
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.

29 U.S.C. § 160(j).
6

against employees because of their support for the Union; (c)
Prohibiting employees from discussing a union during working
time while permitting them to discuss other subjects unrelated
to work; and (d) In any other manner, interfering with,
restraining or coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.
The Board also seeks as part of its requested injunctive
relief that this Court direct Amerinox to offer immediate
reinstatement to Miguel Gonzalez, Andrew Rodriguez,
Keon Smith, Joseph Soto, and Bernard Venable to their former
positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights and privileges they
previously enjoyed. 6
The Board claims that an injunction is necessary because by
the time the Board litigation process concludes, and a remedy is
imposed, it will be many months or even years later, and too

With regard to this requested relief, the Board relates that
only four employees – Soto, Smith, Rodriguez, and Gonzalez –
have currently affirmatively expressed a desire to work for
Amerinox, but that all five of the discriminatees are entitled
to consider offers of interim reinstatement under the
protections of a Section 10(j) decree. The Board further
relates that it is not seeking an offer of interim reinstatement
for George because there are remedial issues relating to his
acceptance of a job offer with a new employer prior to his
unlawful discharge.
6

7

late to revive the Union organizing drive, which Amerinox will
have managed to destroy with its unlawful conduct, and the
effects of which will be permanent unless temporary injunctive
relief is granted to safeguard the Board’s remedial powers.
Petitioner further claims that after the mass discharge/layoff
on October 19, 2020, the Union was only able to garner one
additional digital union authorization card on November 2, 2020,
and none thereafter through February 2021.

Following the

terminations of the six employees, the Union was unable to get
employees to talk to them while at Amerinox’s facility.
Recently, as the hearing date on the underlying unfair-laborpractice charges approached, the Board contends that a few
employees have been willing to speak to the Union but they have
been unwilling to be seen talking to the Union.
Amerinox, not surprisingly, tells a different story.
Amerinox sets forth what it contends are the legitimate business
reasons for the termination of these six employees.

For Kyle

George, Amerinox relates that not only did George misprocess a
significant customer order in October 2020 causing Amerinox
almost a quarter of a million dollars to settle the matter with
its customer, George gave his two-weeks’ notice to Amerinox on
October 19, 2020 that he was leaving his employment for another
position with a different employer.

8

As for Miguel Gonzalez,

Amerinox relates that on October 15, 2020, Gonzalez got into an
altercation with a co-worker.

Seth Young, Amerinox’s president

and owner, determined that Gonzalez should be terminated for
violating Amerinox’s workplace violence policy, and that when he
made the decision to terminate Gonzalez, he was unaware of any
of Gonzalez’s alleged union activities.
Amerinox relates that the other four employees - Andrew
Rodriguez, Keon Smith, Joseph Soto, and Bernard Venable - were
laid off due to the impact of COVID-19.

Amerinox states that

between March and October 2020, Amerinox lost approximately $1
million, and that October 2020 was especially “horrific”
financially.

Amerinox determined that it needed to further

reduce employee headcount, and it prepared an internal memo
which identified seven employees considered for layoff, and the
reasons each was considered for layoff.

Amerinox contends that

when Young decided to conduct the layoffs on October 19, 2020,
he “had zero knowledge of any text or cards or that there was
anything going on” with the Union.
In its overriding argument against the Board’s request for
an injunction, Amerinox contends that even putting aside the
circumstances of the six employees’ terminations, the Union has
not presented evidence to show that the unionizing activities
have been suppressed, which is the critical determination as to

9

whether a Section 10(j) injunction should be imposed.

With

regard to the Union’s alleged unsuccessful efforts to engage
Amerinox’s workers, Amerinox points out that in 2018, the Union
attempted to organize Amerinox’s employees, led by the Union’s
area marketing representative, Robert Gadsby.

A secret ballot

election was held near the end of 2018, and the Union lost.
Amerinox further points out that there is no evidence that the
Union did anything to attempt to organize Amerinox’s employees
between April/May 2020 through October 2020.
Amerinox points out that Gadsby testified that even though
there was a period of time when it appeared the organizational
campaign had slowed, it has since picked back up and now is
“steady.”

Gadsby has met in person with current Amerinox

employees at the Collingswood Diner, and has met with Amerinox
employees several times since the October 2020 layoffs,
including as recently as a few weeks before the administrative
hearing in early May 2021.

Gadsby also testified that he has

had ongoing contact with current Amerinox employees related to
the Union’s attempt to organize employees at Amerinox, including
exchanging texts with those employees from at least February
2021 through the weeks leading up to the administrative hearing
in May 2021.

Moreover, Gadsby testified that the level of

10

interest among Amerinox employees not only has picked back up,
but has been steady at least as of February 2021.
In addition to arguing that the timing of the Board’s
petition demonstrates that injunctive relief is not warranted,
as the Board has delayed seven months in filing this action,
Amerinox argues that the lack of Union-chilling activities
undermines the Board’s request for injunctive relief.
In addition to directly opposing the Board’s position that
it is entitled to its requested relief pending the final
resolution of the Board’s charges, 7 Amerinox also contends that
the Board has no power to bring the petition for injunctive
relief because the Acting General Counsel of the NLRB, who filed
the amended petition on behalf of petitioner, lacks authority to
prosecute this matter due to the improper removal of General
Counsel Peter B. Robb in January 2021.

Amerinox contends that

This Court has a very limited role in the NLRB process. Once
the Board issues a final decision, either the Board or any other
“person aggrieved” by the Board’s order files a petition for
review before the relevant circuit court of appeals, and then,
if necessary, before the United States Supreme Court. See
Atlantic City Electric Company v. National Labor Relations
Board, --- F. 4th ---, 2021 WL 2817009, at *2 (3d Cir. 2021)
(citing 29 U.S.C. §§ 160(e), (f)). A district court’s only
involvement in the NLRB process is a Section 10(j) petition for
an injunction pending the Board’s final order. 29 U.S.C. §
160(j), supra note 4; cf. id. § 160(e) (providing that one rare
exception is “if all the courts of appeals to which application
may be made are in vacation” may the Board seek review of a
final order before the district court).
7

11

the removal of a lawfully appointed sitting General Counsel of a
quasi-judicial independent government agency was not in accord
with the Act and compromised the NLRB’s ability to operate
independently.

Amerinox further argues that the appointment of

an Acting General Counsel circumvented the Appointments Clause
of the U.S. Constitution and the Federal Vacancies Reform Act.
The United States intervened because of this argument, and
both the Board and the United States have argued that Amerinox’s
position is without merit.

Following the parties’ briefing,

including that of the United States as a consented-to
intervenor, this Court held oral argument on the Board’s
petition on June 25, 2021, and permitted supplemental briefing.
As stated above, during the pendency of this matter, the ALJ
issued his decision on July 8, 2021.

The parties filed

supplemental letters regarding the impact of this decision,
which the Court has also considered.
DISCUSSION
A.

Subject matter jurisdiction

This Court has subject matter jurisdiction over this matter
pursuant Section 10(j) of the National Labor Relations Act, as
amended, 29 U.S.C. § 160(j).

12

B.

Analysis

As a preliminary matter, the Court must first briefly
address Amerinox’s challenges to the propriety of the Board’s
petition based on the circumstances of the removal of the former
General Counsel to the NLRB, and the prosecution of the matter
by the Acting General Counsel.

As set forth by the United

States, in the NLRA Congress created two separate offices within
the NLRB subject to presidential appointment and senate
confirmation:

Members of the Board, 29 U.S.C. § 153(a), 8 and the

General Counsel, 29 U.S.C. § 153(d). 9

8

Congress provided that the

29 U.S.C. § 153(a) provides:
The National Labor Relations Board (hereinafter called the
“Board”) created by this subchapter prior to its amendment
by the Labor Management Relations Act, 1947 [29 U.S.C. 141
et seq.], is continued as an agency of the United States,
except that the Board shall consist of five instead of
three members, appointed by the President by and with the
advice and consent of the Senate. Of the two additional
members so provided for, one shall be appointed for a term
of five years and the other for a term of two years. Their
successors, and the successors of the other members, shall
be appointed for terms of five years each, excepting that
any individual chosen to fill a vacancy shall be appointed
only for the unexpired term of the member whom he shall
succeed. The President shall designate one member to serve
as Chairman of the Board. Any member of the Board may be
removed by the President, upon notice and hearing, for
neglect of duty or malfeasance in office, but for no other
cause.

9

29 U.S.C. § 153(d) provides,
There shall be a General Counsel of the Board who shall be
appointed by the President, by and with the advice and
13

persons appointed to the Board “may be removed by the President,
upon notice and hearing, for neglect of duty or malfeasance in
office, but for no other cause.”

29 U.S.C. § 153(a).

Congress

did not include the same provision for the General Counsel.

Id.

§ 153(d).
Based on the plain language of these provisions, the
President may relieve the General Counsel of his or her duties
without the process required for Board members.

This

prerogative of the President also demonstrates that the
temporary assignment of an Acting General Counsel without
compliance with the Appointments Clause 10 or other laws, such as
consent of the Senate, for a term of four years. The
General Counsel of the Board shall exercise general
supervision over all attorneys employed by the Board (other
than administrative law judges and legal assistants to
Board members) and over the officers and employees in the
regional offices. He shall have final authority, on behalf
of the Board, in respect of the investigation of charges
and issuance of complaints under section 160 of this title,
and in respect of the prosecution of such complaints before
the Board, and shall have such other duties as the Board
may prescribe or as may be provided by law. In case of a
vacancy in the office of the General Counsel the President
is authorized to designate the officer or employee who
shall act as General Counsel during such vacancy, but no
person or persons so designated shall so act (1) for more
than forty days when the Congress is in session unless a
nomination to fill such vacancy shall have been submitted
to the Senate, or (2) after the adjournment sine die of the
session of the Senate in which such nomination was
submitted.
The U.S. Constitution’s Appointments Clause, provides in
relevant part: “[The President] . . . shall nominate, and by and

10

14

Federal Vacancies Reform Act, 11 does not render the Section 10(j)
petition invalid.

Indeed, the Act itself provides for the

designation of an Acting General Counsel when the General
Counsel’s position becomes vacant, however that vacancy came to
be.

See 29 U.S.C. § 153(d), supra note 9.
Moreover, a Section 10(j) petition for an injunction is

brought by the Board, not the General Counsel.

That statute

provides:
•

“The Board is empowered . . . to prevent any person from
engaging in any unfair labor practice . . . .” 29 U.S.C.
§ 160(a).

•

“The Board shall have power, upon issuance of a complaint
as provided in subsection (b) charging that any person has
engaged in or is engaging in an unfair labor practice, to
petition any United States district court, within any
district wherein the unfair labor practice in question is
alleged to have occurred or wherein such person resides or
transacts business, for appropriate temporary relief or
restraining order. Upon the filing of any such petition
the court shall cause notice thereof to be served upon
such person, and thereupon shall have jurisdiction to
grant to the Board such temporary relief or restraining
order as it deems just and proper.” Id. § 160(j).

with the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls, Judges of the
Supreme Court, and all other Officers of the United States,
whose Appointments are not herein otherwise provided for, and
which shall be established by Law . . . .” U.S. CONST., art.
II, § 2, cl. 2.
The Federal Vacancies Reform Act of 1998 (Vacancies Reform
Act), Pub. L. No. 105 -277, Div. C, tit. 1, § 151, 112 Stat.
2681-611-16, codified at 5 U.S.C. §§ 3345-3349d, provides for
the temporary filling of vacant executive agency positions that
require presidential appointment with Senate confirmation.
11

15

The Board, through its Regional Director, Thomas Goonan,
and under its power to “to prevent any person from engaging in
any unfair labor practice,” brought a petition before this Court
pursuant to § 160(j). 12

In compliance with § 160(j), this Court

The Court recognizes that the “General Counsel of the Board
shall exercise general supervision over all attorneys employed
by the Board,” and “[h]e shall have final authority, on behalf
of the Board, in respect of the investigation of charges and
issuance of complaints under section 160 of this title, and in
respect of the prosecution of such complaints before the Board,
and shall have such other duties as the Board may prescribe or
as may be provided by law.” 29 U.S.C. § 153(d). The duties of
the General Counsel, however, regarding the investigation and
institution of a charge is separate from the final decision of
the Board on that charge. See NLRB Rules and Regulation, Sec.
102.45 (“Upon the filing of the [ALJ’s] decision, the Board
shall enter an order transferring the case to the Board and
shall serve copies of the order, setting forth the date of such
transfer, on all the parties.”); id. Sec. 102.46 (“Within 28
days, or within such further period as the Board may allow, from
the date of the service of the order transferring the case to
the Board, pursuant to section 102.45, any party may . . . file
with the Board in Washington, D.C., exceptions to the
administrative law judge’s decision or to any other part of the
record or proceedings (including rulings upon all motions or
objections), together with a brief in support of said
exceptions.”); id. Sec. 102.48(a) (“In the event no timely or
proper exceptions are filed as herein provided, the findings,
conclusions, and recommendations contained in the administrative
law judge’s decision shall, pursuant to section 10(c) of the
Act, automatically become the decision and order of the Board
and become its findings, conclusions, and order, and all
objections and exceptions thereto shall be deemed waived for all
purposes.”); id. Sec. 102.48(b) (“Upon the filing of timely and
proper exceptions, and any cross-exceptions or answering briefs,
as provided in section 102.46, the Board may decide the matter
forthwith upon the record, or after oral argument, or may reopen
the record and receive further evidence before a Member of the
Board or other Board agent or agency, or may make other
disposition of the case.”).
12

16

must determine whether to “grant to the Board such temporary
relief or restraining order as it deems just and proper.”
U.S.C. § 160(j) (emphasis added).

29

In sum, because the authority

to bring this petition is vested by statute with the Board individuals appointed and confirmed as the Constitution requires
– this Court has jurisdiction to hear and adjudicate this
Petition.
To that end, this Court is tasked with deciding two narrow
issues in considering a § 160(j)/Section 10(j) petition for an
injunction.

The Court “need not, indeed should not, make a

finding of employer motivation.”

Eisenberg for and on Behalf of

N.L.R.B. v. Wellington Hall Nursing Home, Inc., 651 F.2d 902,
906 (3d Cir. 1981).

Instead, this Court’s determination of

whether to issue temporary injunctive relief under Section 10(j)
involves a two-fold inquiry: (1) whether there is reasonable
cause to believe that an unfair labor practice has occurred; and
(2) whether an injunction would be just and proper.

Hirsch v.

Dorsey Trailers, Inc., 147 F.3d 243, 247 (3d Cir. 1998).

“Under

this inquiry, the court determines whether an injunction is
necessary to preserve the Board’s remedial powers, which
incorporates a weighing of relative harms to the bargaining
process, employees’ rights, and the likelihood of restoring the
status quo absent injunctive relief, along with the public

17

interests implicated by the labor disputes.”

Chester ex rel.

N.L.R.B. v. Grane Healthcare Co., 666 F.3d 87, 98–99 (3d Cir.
2011).
(1)

Whether there is reasonable cause to believe that an
unfair labor practice has occurred

This Court finds that the Board has established the first
prong of the two-part test.

The “reasonable cause” inquiry

requires a court to examine whether the Board’s legal theory is
“substantial and non-frivolous,” Chester ex rel. N.L.R.B. v.
Grane Healthcare Co., 666 F.3d 87, 101 (3d Cir. 2011), which is
a “low threshold of proof,” Kobell v. Suburban Lines, Inc., 731
F.2d 1076, 1084 (3d Cir. 1984).

After a hearing and an

opportunity for Respondent to be heard, the ALJ found:
2. Respondent violated Section 8(a)(1) of the Act by
telling employees they were not permitted to talk about the
Union during working time, although Respondent permitted
employees to talk about other nonwork topics during working
time.
3. Respondent violated Section 8(a)(1) of the Act by
threatening employees with discharge if they supported the
Union or engaged in Union activity.
4. Respondent violated Section 8(a)(1) of the Act by
(i) telling an employee that the employee was being
discharged because of the employee’s support for the Union;
and (ii) by creating the impression among its employees
that their Union activities were under surveillance by
Respondent.
5. Respondent violated Section 8(a)(3) and (1) of the
Act when it discharged its employee Miguel “Taz” Gonzalez
because he formed, joined, or assisted the Union and

18

engaged in concerted activities, and to discourage
employees from engaging in these activities.
6. Respondent violated Section 8(a)(3) and (1) of the
Act when it immediately separated its employee Kyle George,
rather than allowing him to work his final two weeks,
because he formed, joined, or assisted the Union and
engaged in concerted activities, and to discourage
employees from engaging in these activities.
7. Respondent violated Section 8(a)(3) and (1) of the
Act when it laid off its employees Andrew Rodriguez, Joseph
Soto, Keon Smith, and Bernard Venable because Respondent’s
employees formed, joined, or assisted the Union and engaged
in concerted activities, and to discourage employees from
engaging in these activities.
8. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
(Docket No. 46-1 at 21-22.) 13
The ALJ’s recent decision finding extensive unfair labor
practices, 14 which is based on the same record before this Court
As discussed more below, the ALJ ordered, among other relief,
that Amerinox is required to offer full reinstatement to Miguel
Gonzalez, Andrew Rodriguez, Joseph Soto, Keon Smith, and Bernard
Venable, and that Amerinox make whole Kyle George, Miguel
Gonzalez, Andrew Rodriguez, Joseph Soto, Keon Smith, and Bernard
Venable for any loss of earnings and other benefits. (Docket
No. 46-1 at 25.)
13

This Court may consider the substance of the ALJ’s decision,
which was issued after briefing and oral argument on the Board’s
petition, but prior to the issuance of this Opinion. See, e.g.,
Moore-Duncan ex rel. N.L.R.B. v. Aldworth Co., Inc., 124 F.
Supp. 2d 268, 274 (D.N.J. 2000) (“This Court has reviewed the
extensive record in this case, including the transcripts of
proceedings and other evidence before Administrative Law Judge
William G. Kocol, and Judge Kocol’s Opinion of April 20, 2000,
detailing his findings that the respondents had committed
substantial unfair labor practices surrounding union organizing
14

19

and which this Court has reviewed, 15 confirms that the Board has
readily met the “low threshold” “reasonable cause” element.
(2) Whether an injunction would be just and proper
The Board has also met the second prong to warrant
injunctive relief.

Whether the imposition of an injunction

pending the final resolution of the Union’s charges would be
“just and proper” focuses on the Board’s ability to “facilitate
peaceful management-labor negotiation.”

Hirsch, 147 F.3d at 247

(citing Vibra Screw, 904 F.2d at 879 (“[T]he critical
determination is whether, absent an injunction, the Board's
ability to facilitate peaceful management-labor negotiation will
be impaired.”)).
In evaluating the net benefits of injunctive relief, the
courts weigh the relative harms it may prevent against the harms
it may produce.

Id.

That includes evaluating how “the chilling

effect of management retaliation may outlast the curative

activities and a certification election conducted September 19,
1998. The essential issue under section 10(j) is whether this
Court should grant a temporary injunction compelling the
respondents to take steps to ameliorate their alleged unfair
labor practices pending final determination by the NLRB upon
review of ALJ Kocol’s decision.”).
See Docket No. 23, ORDER granting Petitioner's Motion to Try
Petition for Temporary Injunction on the Basis of the Record
Developed before the Administrative Law Judge. Amerinox did not
oppose this motion.
15

20

effects of any remedial action the Board might take . . . .”
Id. (citation omitted).

It also includes weighing not only the

harms to the Board, but also the harms injunctive relief poses
to the employer.

Id. (citation omitted).

In this case, the Board argues that an injunction is just
and proper because:

“The leaders of the campaign have been

illegally removed from the workplace.

The employees are afraid

and the campaign has effectively ground to a halt.

The Union

quickly secured eight cards prior to the mass discharge
on October 19.

After the discharges, the Union has had

difficulty communicating with the employees and . . . card
signing slowed to a trickle, despite the Union going to the
facility about twice a week.

The Union received only

four cards between October 20 and November 2, as well as one
card that was undated, and two additional cards in March 2021,
despite continuing fear.”

(Docket No. 3 at 53.)

The Court recognizes Amerinox’s contrasting position that
the “mass discharge” of union activists did not impact the
Union’s efforts because of the following: the Union was able to
obtain four cards in the two weeks after the terminations; even
though there was a period of time when it appeared that the
organizational campaign had slowed, it has since picked back up
and now is “steady”; Gadsby has met in person with current

21

Amerinox employees at the Collingswood Diner; he has met with
Amerinox employees several times since the October 2020 layoffs,
including as recently as a few weeks before the administrative
hearing in early May 2021; he has had ongoing contact with
current Amerinox employees related to the Union’s attempt to
organize employees at Amerinox; he has exchanged texts with
those employees from at least February 2021 through the weeks
leading up to the administrative hearing in May 2021; the Board
does not provide evidence from current Amerinox employees who
have expressed that fear of retaliation by Amerinox is the
reason they have not signed the Union authorization cards,
rather than a lack of interest by employees in joining the
Union; and the Board waited seven months to file its petition. 16
The Court finds, however, that despite the above-outlined
Union communications with Amerinox employees and the recent
signing of additional authorization cards, the Board has
demonstrated on the record as a whole that Amerinox’s
acrimonious history with the Union and the termination of
employees who have expressed support for the union, is likely to

The Court notes that a delay in initiating a Section 10(j)
petition does not on its own preclude injunctive relief. (See
Docket No. 30 at 19, citing cases.)
16

22

have, and continues to have, a substantial chilling effect on
its employees’ unionizing activities.
The ALJ noted that an employer’s rules and policies that
prohibit employees from disclosing or discussing their wage rate
or salary violate the Act, and the ALJ found that Amerinox
violated Section 8(a)(1) between June 1, 2020 and March 30,
2021, by maintaining rules in Sections L and V of its Employee
Manual and its Progressive Disciplinary Policy that prohibit
employees from disclosing information about wages, benefits, and
other terms and conditions of employment. (Docket No. 46-1 at
21.)

Although after March 30, 2021, Amerinox revised and

reissued both documents to include acceptable language, this
Court finds that the chilling effect of those provisions is
likely to have persisted since then and continues today.

This

finding is supported by the ALJ’s July 8, 2021 order, which
directed that Amerinox was to immediately provide employees with
inserts or revised versions for the current Employee Manual and
current Progressive Disciplinary Policy that advises that the
unlawful provisions have been rescinded, or provides a lawfully
worded provision on adhesive backing that will cover the
unlawful provisions.

(Id. at 23.)

The ALJ’s decision also supports the finding that
Amerinox’s actions have likely chilled, and continue to chill,

23

its employees’ union activities.

The ALJ found that in addition

to providing employees with revised versions of the Employee
Manual and Progressive Disciplinary Policy, additional remedies
were necessary to fully dissipate the coercive effect of
unlawful discharges and layoffs and other unfair labor
practices, including a notice reading and the entry of a broad
cease and desist order. 17

(Id.)

The ALJ found that a notice

reading was appropriate where, as here, the employer’s
violations are serious enough that a reading is warranted to
reduce the chilling effect of the violations on employees’
willingness to exercise their Section 7 rights.

(Id. at 23-24.)

The ALJ found that Amerinox “committed serious violations,
including threats from the company president that he would
destroy those who support the Union and later a mass
separation/layoff of over 60 percent of the Union supporters
immediately upon learning of the renewed organizing efforts,”
and that Amerinox “has a history of serious violations during
the prior organizing effort.”

(Id. at 24.)

The ALJ recommended

that Amerinox should be required to hold a mandatory employee
meeting on working time to ensure the widest possible employee
The ALJ noted that the additional remedies also included
notice mailing, providing the Union with employees’ contact
information and access to Amerinox’s bulletin board, and access
to Amerinox’s facility. (Docket No. 46-1 at 23.) The ALJ did
not order these additional remedies.
17

24

attendance, at which Amerinox representatives would read aloud
the notice to employees.
The ALJ further found that the serious unfair labor
practices in this case, in combination with the numerous
violations addressed in the prior formal settlement,
demonstrated a general disregard for Amerinox’s employees’
fundamental Section 7 rights, and consequently a broad ceaseand-desist remedy was warranted and would best effectuate the
remedial purposes of the Act.

(Id. at 24.)

Accordingly, the ALJ ordered the following relief that
Amerinox:
1. Cease and desist from:
(a) Discharging, laying off, or otherwise discriminating
against employees because of their support for a union or
because other employees support a union.
(b) Creating the impression that it is engaged in
surveillance of its employees’ union or other
organizational activities.
(c) Threatening employees with discharge or other
retaliation if you choose to be represented by or support a
union.
(d) Prohibiting employees from discussing a union during
working time while permitting them to discuss other
subjects unrelated to work.
(e) Telling employees they are being separated because of
their support for a union.
(f) Maintaining work rules that prohibit employees from
discussing their wages, benefits, or other terms or
conditions of employment.
25

(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
(Id. at 25.)
This Court recognizes that the ALJ did not explicitly
consider the two-prong test for a Section 10(j) petition for
injunctive relief that this Court must assess.

But the ALJ

considered the same administrative record as presented to this
Court, 18 and this Court cannot overlook the significance of the
ALJ’s findings that Amerinox’s current union-chilling conduct
requires the immediate imposition of a notice reading and a
cease-and-desist order.
Similarly, in determining whether Section 10(j) injunction
is warranted, the Court must consider the individual relief the
ALJ afforded to the discharged employees.

The ALJ ordered,

among other relief, that Amerinox is required to offer full
reinstatement to Miguel Gonzalez, Andrew Rodriguez, Joseph Soto,
Keon Smith, and Bernard Venable.

(Docket No. 46-1 at 25.)

Part

of the Board’s request for injunctive relief here is the offer
of interim reinstatement to these same employees.
The Court recognizes that the focus of a Section 10(j)
petition for injunctive relief is on the Board’s efforts to
18

See, infra, note 13.
26

facilitate peaceful management-labor negotiation, and not to
provide redress to a discharged employee individually, which is
a major focus of the ALJ’s decision.

See Eisenberg for and on

Behalf of N. L. R. B. v. Wellington Hall Nursing Home, Inc., 651
F.2d 902, 906–07 (3d Cir. 1981) (explaining that “[w]hen the
Board files an application for such relief it is not acting on
behalf of individual employees, but in the public interest”).
Where, however, “union supporters are excluded from the
bargaining process pending resolution of unfair labor practice
charges, the position of the designated bargaining
representative will in all likelihood be substantially
undermined, [and] all members of the bargaining unit may be
affected by such an erosion of union support.”

Id.

Here, the offer of interim reinstatement of the discharged
employees who were all terminated on the same day
contemporaneous with their union activities will serve to
ameliorate the “harms to the bargaining process [and] employees’
rights,” “restore the status quo” and serve “the public
interests implicated by the labor disputes.”
Co., 666 F.3d at 98–99.

Grane Healthcare

Additionally, Amerinox has not

expressly articulated what harm it will suffer if the Court
grants the Board’s requested relief.

See Hirsch, 147 F.3d at

247 (explaining that in evaluating the net benefits of

27

injunctive relief, a court must weigh not only the harms to the
Board, but also the harms injunctive relief poses to the
employer).
Consequently, the Court finds that the “issuance of an
injunction is ‘just and proper,’ i.e., that it is in the public
interest to grant the injunction, so as to effectuate the
policies of the National Labor Relations Act or to fulfill the
remedial function of the Board.”
1003.

Lenape Products, 781 F.2d at

The Court will issue an injunction which includes

enjoining Amerinox from engaging in any actions relative to its
employees’ union activities, ordering that Amerinox offer
interim reinstatement to the five affected employees, posting
notice, and holding a reading of the notice. 19

In its petition, the Board requests that the Court order
Amerinox to: “Supply the Union, upon its request, with the full
names, work locations, shifts, job classifications and home
addresses for the following employees: All full-time and regular
part-time shipping/receiving employees, production and
maintenance employees employed by Respondent at its 2201 Mount
Ephraim Avenue, Camden, New Jersey facility.” (Docket No. 14 at
9.) The ALJ denied this relief, finding, “The Union, however,
does not lack the ability to access Respondent’s employees.
Gadsby was able to communicate with several employees with the
information he had, and the discriminatees, once reinstated,
will be a to communicate with coworkers. I, therefore, see no
need for these additional remedies under the circumstances.”
(Docket No. 46-1 at 24 n.36.) Amerinox also opposed this relief
in its opposition to the Board’s petition for the same reasons.
Because the Board has not expressly contested these reasons of
the ALJ and Amerinox, the Court will decline to grant that
relief.
19

28

CONCLUSION
Even though this Court finds that a Section 10(j)
injunction is warranted at this time, the Court trusts that the
administrative process will still continue expeditiously.

As

the Third Circuit has observed, a Section 10(j) injunction may
only last six months, with limited extensions.

The Third

Circuit has further observed:
Overworked courts understand and are sensitive to the
problems of overworked administrative agencies. But courts
should and do give priority to matters of great urgency,
particularly those in which need for relief is said to be
so great as to justify the extraordinary remedy of
temporary injunction. By the same token we think the
administrative sense of urgency that leads to a suit for
temporary injunctive relief under Section 10(j) should not
abate once an injunction issues. Rather, the
administrative law judge and, after him, the Board should
hear and dispose of the controversy expeditiously. Indeed,
we think a pledge of expeditious administrative action is
necessarily implicit in a petition for a Section 10(j)
injunction. Otherwise, a temporary injunction, entered
without reaching the ultimate merits of a dispute may
become, in effect, a final disposition of the controversy.
Hartz Mountain, 519 F.2d at 144.
Thus, for the reasons expressed above, the Court will grant
the Board’s petition for an injunction under Section 10(j) of
the National Labor Relations Act, with an appropriate Order to
be entered.

Date: July 14, 2021
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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