Ley v. Novelis Corporation

Filing 73

MEMORANDUM-DECISION and ORDER - ORDERED that Ley's petition (Dkt. No. 1) is GRANTED IN PART as follows: 1.Novelis, its officers, representatives, agents, servants, employees, attorneys, successors and assigns, and all persons acting in concert or participation with it, pending final disposition of the matters involved herein pending before the NLRB, is enjoined and restrained from: (a)Threatening employees with plant closure if they select the Union as their bargaining representative; (b)Threatening employees with a reduction in wages if they select the Union as their bargaining representative; (c)Threatening employees with more onerous working conditions, including mandatory overtime, if they select the Union as their bargaining representative; (d)Disparaging the Union by telling employees that the Union is seeking to have Novelis rescind their pay and/or benefits; (e)Disparaging the Union by telling employees that they would have to pay back wages retroactively as a result of charges filed by the Union; (f)Threatening employees that Novelis would lose business if they select the Union as their bargaining representative; (g)Threatening employees with job loss if they select the Union as their bargaining representative; (h)Interrogating employees about their union membership, activities, and sympathies; (i)Interrogating employees about the union membership, activities and sympathies of other employees; (j)Coercing employees by asking them how to vote if they do not want the Union; (k)Threatening employees by telling them that they did not have to work for Novelis if they are unhappy with their terms and conditions of employment; (l)Prohibiting employees from wearing union insignia on their uniforms while permitting employees to wear anti-union and other insignia; (m)Promulgating and maintaining rules prohibiting all postings, distribution and solicitation related to Section 7 activities; (n)Maintaining a rule that prohibits employees from posting, soliciting and distributing literature in all areas of Novelis premises; (o)Selectively and disparately enforcing Novelis posting and distribution rules by prohibiting union postings and distributions while permitting nonunion and anti-union postings and distributions; (p)Granting wage and/or benefit increases in order to discourage employees from supporting the Union; (q)Soliciting employees' complaints and grievances and promising employees improved terms and conditions of employment if they did not select the Union as their bargaining representative; (r)Demoting employees because they engaged in protected concerted and/or Union activity; (s)Maintaining and giving effect to its overly broad unlawful social media policy; (t)In any like or related manner interfering with, restraining or coercing employees in the exercise of rights guaranteed them under Section 7 of the NLRA. 2.Novelis, its officers, representatives, agents, servants, employees, attorneys, successors and assigns, and all persons acting in concert or participation with it, pending final disposition of the matters involved herein pending before the NLRB, is directed to: (a)Within five (5) days of this order, restore Everett Abare to the position that he previously held at his previous wage and other terms and conditions of employment; (b)Post copies of the courts order at Novelis Oswego, New York, facility where notices to employees are customarily posted, those postings to be maintained during the pendency of the NLRBs administrative proceedings free from all obstructions and defacements; all unit employees shall have free and unrestricted access to said notices; (c)Grant to agents of the NLRB reasonable access to Respondents Oswego, New York, facility in order to monitor compliance with this posting requirement; (d)Within ten (10) days of the date of this order, convene the bargaining unit employees during working time at Novelis Oswego, New York, facility, at a meeting or meetings at times and places scheduled to ensure maximum possible attendance, whereupon Phil Martens or Chris Smith, in the presence of an NLRB Agent, will read the courts order to employees, or at Novelis option, have an NLRB Agent read the order in Phil Martens or Chris Smiths presence;(e)Within twenty one (21) days of the issuance of the courts order, file with the court and submit a copy to the Regional Director of Region Three of the Board, a sworn affidavit from a responsible official of Novelis setting forth, with specificity, the manner in which Novelis has complied with the terms of this decree, including how it has posted the documents required by the court's order. ORDERED that Ley's petition (Dkt. No. 1) is DENIED in all other respects. Signed by Chief Judge Gary L. Sharpe on 9/4/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
RHONDA P. LEY, Regional
Director of the Third Region of
the National Labor Relations
Board, for and on behalf of the
NATIONAL LABOR RELATIONS
BOARD,

5:14-cv-775
(GLS/DEP)

Petitioner,
v.
NOVELIS CORPORATION,
Respondent.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PETITIONER:
National Labor Relations Board
Region Three
Niagara Center Building, Suite 630
130 South Elmwood Avenue
Buffalo, NY 14202
FOR THE RESPONDENT:
Novelis Corporation
3560 Lenox Road, Suite 2000
Atlanta, GA 30326

LINDA M. LESLIE, ESQ.
MARY ELIZABETH
MATTIMORE, ESQ.
NICOLE ROBERTS, ESQ.
LILLIAN RICHTER, ESQ.

KENNETH L. DOBKIN, ESQ.

Hunton & Williams LLP
600 Peachtree Street NE, Suite 4100
Atlanta, GA 30308

KURTIS A. POWELL, ESQ.
ROBERT T. DUMBACHER, ESQ.

Hiscock, Barclay Law Firm
One Park Place

EDWARD G. MELVIN, ESQ.

300 South State Street
Syracuse, NY 13202-2078
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
On June 25, 2014, petitioner Rhonda P. Ley, Regional Director of the
Third Region of the National Labor Relations Board (NLRB), for and on
behalf of the NLRB, filed a petition seeking temporary injunctive relief
pursuant to 29 U.S.C. § 160(j), also known as § 10(j) of the National Labor
Relations Act (NLRA),1 that includes, among other things, a cease and
desist order, an interim bargaining order requiring respondent Novelis
Corporation to “[r]ecognize and bargain in good faith with [the United Steel,
Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and
Service Workers International Union, AFL-CIO, CLC],” (hereinafter “the
Union”), and an order restoring an employee to a position from which he
was demoted. (See generally Pet., Dkt. No. 1.) For the reasons that
follow, the petition is granted in part and denied in part.
II. Background
1

See 29 U.S.C. §§ 151-169.

2

“Novelis is a leading producer of rolled aluminum and the global
leader in beverage can recycling, traditionally serving clients in sectors
including beverage cans, automotive manufacturing, consumer electronics,
construction, and packaging.” (Dkt. No. 36 at 2; Dkt. No. 43, Attach. 37 at
14-15.) Novelis’ largest, wholly-owned fabrication plant, of the eight it
maintains in North America, is the Oswego, New York, facility, which
employs over 850 employees. (Dkt. No. 43, Attach. 1 ¶ 21; Dkt. No. 43,
Attach. 37 at 17.) Of those 850 employees employed at the Oswego
facility, 599 comprised the unit and were deemed eligible to vote for
unionization in this case. (Dkt. No. 43, Attach. 37 ¶ 19, at 39-41.)
Beginning at end of 2013, employees began to express
dissatisfaction with the conditions of their employment with Novelis. In
particular, in November, “employees in the Cold Mill stopped working
because they were upset over . . . upcoming policy changes affecting
holiday pay, overtime and [other issues].” (Dkt. No. 36 at 5; Dkt. No. 43,
Attach. 6 ¶ 15.) Jason Bro, one of the Cold Mill managers, and Peter
Sheftic, Human Resources Manager, met with these employees regarding
their concerns. (Dkt. No. 37, Attach. 35 ¶ 3; Dkt. No. 43, Attach. 6 ¶ 16.)
In December, Novelis held its annual wage and benefit meeting; at the
3

meeting, plant manager Chris Smith announced certain wage increases
that were intended to offset the planned loss of Sunday premium pay and
other benefits. (Dkt. No. 65, Attach. 17 ¶ 7.) After the meeting, Novelis
employee Everett Abare contacted Union representative James Ridgeway,
and, afterward, decided to “seek union representation.” (Id. ¶ 10.)
Eventually, Abare and 368 other employees signed union authorization
cards. (Id.; Dkt. No. 65, Attachs. 50-51.) Record evidence suggests that
Novelis management knew about the unionization efforts by January 3,
2014, and that a supervisor was told by one particular employee that
“[e]mployees were upset about the changes that were implemented and
talking about getting a union” as early as December 18, 2013. (Dkt. No.
65, Attach. 17 ¶ 15; Dkt. No. 65, Attach. 52 ¶ 8.)
In a letter dated January 7, Ridgeway demanded that Novelis
recognize the Union as the exclusive collective bargaining representative
and bargain with it as exclusive bargaining representative of the 599employee unit. (Pet. ¶ 18(v); Dkt. No. 65, Attach. 5.) Ridgeway’s demand
was based on his claim that a majority of employees endorsed the Union.
(Dkt. No. 65, Attach. 5 at 1.) Novelis declined to recognize the Union,
which prompted a secret ballot election. (Dkt. No. 65, Attach. 6.) Although
4

the parties apparently dispute the timing of Novelis’ receipt of Ridgeway’s
letter, (Pet. ¶ 18(v); Dkt. No. 65, Attach. 6), on January 9, Novelis
announced that the changes to premium pay and overtime benefits, among
other things, would not be instituted as previously planned. (Dkt. No. 65,
Attach. 7.)
The facts of the ensuing campaign are disputed, but what follows is
apparent from the record. In January and February, high-ranking Novelis
officials spoke with employees about the Union, took action regarding
union stickers and literature, and enforced, or declined to enforce, certain
policies. Ley claims that the interactions, some of which have been
transcribed and included in the record, (Dkt. No. 65, Attachs. 8, 11, 12),
along with the other conduct, were threatening, coercive, and constituted
interrogation or solicitation, and violated NLRA § 8(a)(1). (Pet. ¶ 18(f)-(o);
Dkt. No. 1, Attach. 3 at 20-33.) Following the campaigning period, the
election was held on February 20 and 21. (Dkt. No. 65, Attach. 2.)
Ultimately, 273 employees voted in favor of unionization while 287 voted
against it. (Id.)
Ley alleges violations of § 8(a)(1) and (3) in connection with the
eventual demotion of Abare on or about April 11, 2014. (Pet. ¶ 18(q); Dkt.
5

No. 1, Attach. 3 at 33-37.) On that issue, Abare posted the following
comment on Facebook on March 29, 2014:
As I look at my pay stub for the 36 hour check we get
twice a month, One worse than the other. I would just
like to thank all the F*#KTARDS out there that voted
“NO” and that they wanted to give them another
chance...! The chance they gave them was to screw
us more and not get back the things we lost....! Eat
$hit “NO” Voters.....
(Dkt. No. 65, Attach. 14; Dkt. No. 43, Attach. 32 ¶ 6.) Abare, who was a
crew leader in the Cold Mill Operations and trainer and officer in the Fire
Department and EMT squads, (Dkt. No. 43, Attach. 32 ¶ 8; Dkt. No. 43,
Attach. 35 ¶ 7), was stripped of his leadership positions as a consequence
of his post although he remains a Novelis employee, (Dkt. No. 43, Attach.
32 ¶ 11).
In connection with the foregoing, the Union, which filed a
representation petition with the NLRB on January 13, 2014, (Dkt. No. 1,
Attach. 1 at 1), filed a host of charges of unfair labor practices (ULPs) with
the NLRB between January 27 and May 22, 2014, (id. at 2-12). Following
an investigation by the NLRB, those charges resulted in a complaint of
ULPs, which is currently pending before the NLRB for adjudication. (Id. at
13-31.) The NLRB thereafter filed the instant petition seeking temporary
6

relief pursuant to NLRA § 10(j). (See generally Pet.) While the court has
endeavored to quickly adjudicate the merits of the petition consistent with
the command of 28 U.S.C. § 1657(a), various motions, including two
motions by employees both in favor of and opposed to unionization seeking
to intervene, (Dkt. Nos. 29, 51), and a motion by the Union seeking amicus
curiae status, (Dkt. No. 8), were filed in this case. Those motions were
denied in their entirety. (Dkt. Nos. 12, 18, 58.) Finally, on August 21, the
parties appeared for an oral return on the petition at which time they were
permitted to elucidate their positions.
III. Standard of Review
Section 10(j) of the NLRA provides:
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.
In the Second Circuit, a § 10(j) injunction cannot issue unless a two-part
7

showing is made by the petitioner. See Mattina ex rel. Nat’l Labor
Relations Bd. v. Kingsbridge Heights Rehab. & Care Ctr., 329 F. App’x
319, 321 (2d Cir. 2009). As the Circuit has succinctly explained:
First, the court must find reasonable cause to believe
that unfair labor practices have been committed.
[R]easonable cause to support such a conclusion is
sufficient, or put differently, a district court does not .
. . make a final determination whether the conduct in
question constitutes an unfair labor practice. In
determining whether reasonable cause exists, a
district court should show [a]ppropriate deference . . .
to the judgment of the NLRB, and . . . should decline
to grant relief only if convinced that the NLRB’s legal
or factual theories are fatally flawed. Second, the
court must find that the requested relief is just and
proper. This Circuit has made clear that courts
should grant interim relief under Section 10(j) in
accordance with traditional equity practice, as
conditioned by the necessities of public interest which
Congress has sought to protect. Thus, injunctive
relief under § 10(j) is just and proper when it is
necessary to prevent irreparable harm or to preserve
the status quo.
Id. (internal quotation marks and citations omitted).
On the issue of interim bargaining orders, the Second Circuit has
provided the following additional guidance:
“[W]hen the Regional Director makes a showing,
based on authorization cards, that the union at one
point had a clear majority and that the employer then
engaged in such egregious and coercive unfair labor
8

practices as to make a fair election virtually
impossible, the district court should issue a bargaining
order under § 10(j). In such a case the election
process has been rendered so meaningless by the
employer, that the authorization cards are a clearly
superior gauge of employee sentiment. A bargaining
order then becomes a just and proper means of
restoring the pre-unfair labor practice status quo and
preventing further frustration of the purposes of the
Act.”
Kaynard v. MMIC, Inc., 734 F.2d 950, 953-54 (2d Cir. 1984) (quoting
Seeler v. Trading Port, Inc., 517 F.2d 33, 40 (2d Cir. 1975)).
IV. Discussion
The court cannot concern itself with what the ALJ or NLRB might do
when they are called upon to render determinations as the administrative
process unfolds.2 In the end, it is for this court to decide whether the
standard for temporary relief under NLRA § 10(j) has been met, and,
concomitantly, whether the requested relief is appropriate.
A.

Reasonable Cause
Ley alleges violations of NLRA § 8(a)(1) and (3) based upon a whole

series of conduct, some of which is referenced above and all of which is
2

Indeed, the correctness of Ley’s argument that she “has reasonable cause to believe
that a Circuit Court would enforce a Gissel bargaining order” in this case, (Dkt. No. 64 at 4-5),
is of no real moment either. If the court had a crystal ball, it would gaze into it for more
productive purposes than to see what the Second Circuit will do in this case if and when the
time comes.

9

detailed in her petition. (Pet. ¶ 18.) While there are a host of disputed
facts, the deferential standard wins the day on the first prong. The court
offers a few observations, however, and notes that reasonable minds could
differ regarding some of the factual conclusions drawn by the NLRB. 3 For
instance, Ley’s accusation that Novelis misrepresented to the employees
that the Union had filed a charge related to premium pay and other
benefits, (Pet. ¶ 18(g)(4)), is not so clear given the content of the letter
itself, which could be construed to support exactly what Ley claims Novelis
lied to its employees about. The letter, which was drafted by an NLRB
investigator, includes an allegation that high-ranking officials announced
the restoration of premium pay. (Dkt. No. 43, Attach. 37 at 82-84.)
Importantly, the potential for an innocent explanation for one action or
another, or legal arguments about what may constitute a ULP by Novelis,
does not sound the death knell for reasonable cause. This is true as to all
of the arguments raised by Novelis in opposition to the reasonable cause
prong, particularly with respect to whether employees were tricked into

3

The court is also troubled by Ridgeway’s affidavit, which was filed in support of Ley’s
petition. (Dkt. No. 65, Attach. 3.) Ley herself refers to the affidavit as partially “not accurate,”
but, nonetheless, relies on the balance of it to support her request for relief. (Dkt. No. 65.) As
concerning as it is that Ley has all but admitted a fabrication or embellishment by Ridgeway, it
is for the NLRB to resolve credibility issues such as this. See Kaynard v. Palby Lingerie, Inc.,
625 F.2d 1047, 1051 n.5 (2d Cir. 1980).

10

signing authorization cards. (Dkt. No. 35 at 7-9.) Because the court should
show deference to the judgment of the NLRB and only refuse to grant relief
if it is convinced that the NLRB’s legal and factual theories are fatally
flawed, see Mattina, 329 F. App’x at 321, there is reasonable cause to
believe that Novelis has engaged in or is engaging in ULPs. For the
benefit of the employees to whom this order will be read, that the court
found reasonable cause for the NLRB’s allegations of ULPs does not mean
that Novelis committed or is committing ULPs—that is a question to be
decided by the executive branch of government, through the NLRB, after a
full administrative hearing.
B.

Just and Proper
Finding that the first prong is satisfied, the only issue

remaining—elusive as it is—is what relief is just and proper. Ley seeks an
injunction prohibiting Novelis from:
(a)

Threatening employees with plant closure if
they select the Union as their bargaining
representative;

(b)

Threatening employees with a reduction in
wages [i]f they select the Union as their
bargaining representative;

(c)

Threatening employees with more onerous
11

working conditions, including mandatory
overtime, if they select the Union as their
bargaining representative;
(d)

Disparaging the Union by telling employees that
the Union is seeking to have Respondent
rescind their pay and/or benefits;

(e)

Disparaging the Union by telling employees that
they would have to pay back wages
retroactively as a result of charges filed by the
Union;

(f)

Threatening employees that Respondent would
lose business if they select the Union as their
bargaining representative;

(g)

Threatening employees with job loss if they
select the Union as their bargaining
representative;

(h)

Interrogating employees about their union
membership, activities, and sympathies;

(i)

Interrogating employees about the union
membership, activities and sympathies of other
employees;

(j)

Coercing employees by asking them how to
vote if they do not want the Union;

(k)

Threatening employees by telling them that they
did not have to work for Respondent if they are
unhappy with their terms and conditions of
employment;

(l)

Prohibiting employees from wearing union
12

insignia on their uniforms while permitting
employees to wear anti-union and other
insignia;
(m)

Promulgating and maintaining rules prohibiting
all postings, distribution and solicitation related
to Section 7 activities;

(n)

Maintaining a rule that prohibits employees from
posting, soliciting and distributing literature in all
areas of Respondent’s premises;

(o)

Selectively and disparately enforcing
Respondent’s posting and distribution rules by
prohibiting union postings and distributions
while permitting nonunion and anti-union
postings and distributions;

(p)

Granting wage and/or benefit increases in order
to discourage employees from supporting the
Union;

(q)

Soliciting employees’ complaints and
grievances and promising employees improved
terms and conditions of employment if they did
not select the Union as their bargaining
representative;

(r)

Demoting employees because they engaged in
protected concerted and/or Union activity;

(s)

Maintaining and giving effect to its overly broad
unlawful social media policy;

(t)

Refusing to recognize and bargain with United
Steel, Paper and Forestry, Rubber
Manufacturing, Energy, Allied Industrial and
13

Service Workers, International Union, AFL-CIO,
the Union, as the bargaining representative of
the employees in the appropriate bargaining
unit set forth below:
All full-time and regular part-time employees
employed by the Employer at its Oswego, New York
facility, including the classifications of Cold Mill
Operator, Finishing Operator, Recycling Operator,
Remelt Operator, Crane Technician, Mechanical
Technician, Welding Technician, Remelt Operations
Assistant, Hot Mill Operator, Electrical Technician,
Process Technician, Mobile Equipment Technician,
Roll Shop Technician, Production Process & Quality
Technician, Production Process & Quality Specialist,
EHS Facilitator, Planner, Shipping Receiving &
Packing Specialist, Stores Technician, Maintenance
Technician, Machinist, Facility Technician, and
Storeroom Agent, excluding Office clerical employees
and guards, professional employees, and supervisors
as defined in the Act, and all other employees.
(u)

In any like or related manner interfering with,
restraining or coercing employees in the
exercise of rights guaranteed them under
Section 7 of the Act.

(Pet. at 13-15.) Ley also seeks affirmative relief requiring Novelis to:
(a)

Recognize and bargain in good faith with the
Union as the exclusive collective-bargaining
representative of its employees in the
appropriate unit described above;

(b)

Within five (5) days of the order, restore Everett
Abare to the position that he previously held at
his previous wage and other terms and
14

conditions of employment;
(c)

Post copies of the District Court’s opinion and
order at the Respondent’s Oswego, New York
facility where notices to employees are
customarily posted, those postings to be
maintained during the pendency of the Board’s
administrative proceedings free from all
obstructions and defacements; all unit
employees shall have free and unrestricted
access to said notices;

(d)

Grant to agents of the Board reasonable access
to Respondent’s Oswego, New York facility in
order to monitor compliance with this posting
requirement;

(e)

Within ten (10) days of the date of this order,
convene the bargaining unit employees during
working time at the Respondent’s Oswego, New
York facility, at a meeting or meetings at times
and places scheduled to ensure maximum
possible attendance, whereupon Phil Martens
or Chris Smith, in the presence of a Board
Agent, will read the District Court’s Order to
employees, or at Respondent’s option, have a
Board Agent read the Order in Phil Martens’ or
Chris Smith’s presence;

(f)

Within twenty one (21) days of the issuance of
the District Court’s Order, file with the District
Court and submit a copy to the Regional
Director of Region Three of the Board, a sworn
affidavit from a responsible official of
Respondent setting forth, with specificity, the
manner in which Respondent has complied with
the terms of this decree, including how it has
15

posted the documents required by the Court’s
decree.
(Id. at 15-16.)
While the court is inclined to order the majority of the relief requested,
it is not so inclined to issue an interim bargaining order. Equitable
principles compel the denial of that relief, just as they necessitate the
remaining requested relief. Each of the three categories of relief is
addressed below.
1.

Interim Bargaining Order

While there is reasonable cause to believe that ULPs were
committed, the evidence of ULPs is not overwhelming, or, at least, it is
subject to a wide range of interpretation. And the employees in the unit
themselves—as evinced by the copious declarations and confidential
witness affidavits filed herein, (see, e.g., Dkt. No. 43, Attachs. 2, 4, 5, 7-19,
23-31, 33-34, 36, 38-41, 43-51; Dkt. No. 65, Attachs. 17-19, 52, 54)—are
obviously sharply divided over the issue of unionization. 4 It is doubtful that
imposing bargaining on Novelis at this juncture is necessary to prevent
irreparable harm or to preserve the status quo. Indeed, the irreparable
4

The court recognizes that some of the employee-endorsed documents were created
after the alleged ULPs were committed. In any event, the competing submissions demonstrate
divergent views about the conduct of Novelis leading up to, during, and after the campaign.

16

harm inquiry cuts both ways. On the one hand, if a majority of the
employees, free of trickery and false pretenses, authorized the Union to be
their exclusive bargaining agent and Novelis committed or is committing
egregious ULPs, a bargaining order should issue to restore the status quo
as it existed at the time majority status was reached. See Kaynard, 734
F.2d at 954-55. On the other hand, if there were no ULPs, or violations
were mild in nature, and/or a majority of the employees did not intend to
authorize the Union to represent them, a bargaining order is inappropriate
and the employees in the unit should not have the Union thrust upon them.
The serious questions of fact on the issue of whether a clear majority was
ever reached5 gives the court pause and counsels against an interim
bargaining order.
2.

Restoration of Abare to Leadership Positions and Cease and
Desist

Equitable considerations compel the court to order the remaining
requested relief. Simply put, the restoration of Abare to his prior position
and an order restraining and enjoining Novelis from engaging in any ULPs

5

The Supreme Court has explained that employees should not be bound by a signed
authorization card if their signatures were procured through “words calculated to direct the
signer to disregard and forget the language above his signature.” NLRB v. Gissel Packing Co.,
395 U.S. 575, 606 (1969).

17

during the pendency of the administrative process merely serves to
maintain the status quo while that process—which, as explained by
counsel during the oral return, may be quite lengthy—comes to its natural
conclusion. Other traditional remedies, such as reading and posting this
order, are likewise appropriate.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Ley’s petition (Dkt. No. 1) is GRANTED IN PART as
follows:
1.

Novelis, its officers, representatives, agents, servants,
employees, attorneys, successors and assigns, and all persons
acting in concert or participation with it, pending final disposition
of the matters involved herein pending before the NLRB, is
enjoined and restrained from:
(a)

Threatening employees with plant closure if
they select the Union as their bargaining
representative;

(b)

Threatening employees with a reduction in
wages if they select the Union as their
18

bargaining representative;
(c)

Threatening employees with more onerous
working

conditions,

including

mandatory

overtime, if they select the Union as their
bargaining representative;
(d)

Disparaging the Union by telling employees that
the Union is seeking to have Novelis rescind
their pay and/or benefits;

(e)

Disparaging the Union by telling employees that
they

would

have

to

pay

back

wages

retroactively as a result of charges filed by the
Union;
(f)

Threatening employees that Novelis would lose
business if they select the Union as their
bargaining representative;

(g)

Threatening employees with job loss if they
select

the

Union

as

their

bargaining

representative;
(h)

Interrogating employees about their union
19

membership, activities, and sympathies;
(i)

Interrogating employees about the union
membership, activities and sympathies of other
employees;

(j)

Coercing employees by asking them how to
vote if they do not want the Union;

(k)

Threatening employees by telling them that they
did not have to work for Novelis if they are
unhappy with their terms and conditions of
employment;

(l)

Prohibiting employees from wearing union
insignia on their uniforms while permitting
employees to wear anti-union and other
insignia;

(m)

Promulgating and maintaining rules prohibiting
all postings, distribution and solicitation related
to Section 7 activities;

(n)

Maintaining a rule that prohibits employees from
posting, soliciting and distributing literature in all
20

areas of Novelis’ premises;
(o)

Selectively and disparately enforcing Novelis’
posting and distribution rules by prohibiting
union postings and distributions while permitting
nonunion

and

anti-union

postings

and

distributions;
(p)

Granting wage and/or benefit increases in order
to discourage employees from supporting the
Union;

(q)

Soliciting

employees’

complaints

and

grievances and promising employees improved
terms and conditions of employment if they did
not select the Union as their bargaining
representative;
(r)

Demoting employees because they engaged in
protected concerted and/or Union activity;

(s)

Maintaining and giving effect to its overly broad
unlawful social media policy;

(t)

In any like or related manner interfering with,
21

restraining or coercing employees in the
exercise of rights guaranteed them under
Section 7 of the NLRA.
2.

Novelis, its officers, representatives, agents, servants,
employees, attorneys, successors and assigns, and all persons
acting in concert or participation with it, pending final disposition
of the matters involved herein pending before the NLRB, is
directed to:
(a)

Within five (5) days of this order, restore Everett
Abare to the position that he previously held at
his previous wage and other terms and
conditions of employment;

(b)

Post copies of the court’s order at Novelis’
Oswego, New York, facility where notices to
employees are customarily posted, those
postings to be maintained during the pendency
of the NLRB’s administrative proceedings free
from all obstructions and defacements; all unit
employees shall have free and unrestricted
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access to said notices;
(c)

Grant to agents of the NLRB reasonable access
to Respondent’s Oswego, New York, facility in
order to monitor compliance with this posting
requirement;

(d)

Within ten (10) days of the date of this order,
convene the bargaining unit employees during
working time at Novelis’ Oswego, New York,
facility, at a meeting or meetings at times and
places scheduled to ensure maximum possible
attendance, whereupon Phil Martens or Chris
Smith, in the presence of an NLRB Agent, will
read the court’s order to employees, or at
Novelis’ option, have an NLRB Agent read the
order in Phil Martens’ or Chris Smith’s
presence;

(e)

Within twenty one (21) days of the issuance of
the court’s order, file with the court and submit
a copy to the Regional Director of Region Three
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of the Board, a sworn affidavit from a
responsible official of Novelis setting forth, with
specificity, the manner in which Novelis has
complied with the terms of this decree, including
how it has posted the documents required by
the court’s order.
ORDERED that Ley’s petition (Dkt. No. 1) is DENIED in all other
respects; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
September 4, 2014
Albany, New York

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