Hooks v. Ozburn-Hessey Logistics, LLC

Filing 42

ORDER GRANTING 1 PETITION FOR TEMPORARY INJUNCTION. Signed by Judge Samuel H. Mays, Jr., on 4/5/2011. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

RONALD K. HOOKS, Regional Director of Region 26 of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OZBURN-HESSEY LOGISTICS, LLC, Respondent.

) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 10-2609

ORDER GRANTING PETITION FOR TEMPORARY INJUNCTION

Before

the

Court

is

the

August

18,

2010

Petition

for

Temporary Injunction ("Petition") filed by Petitioner Ronald K. Hooks, Regional Director of Region 26 of the National Labor Relations Board, for and on behalf of the National Labor

Relations Board ("Petitioner").

(Pet. for Temporary Inj. Under

Section 10(j) of the National Labor Relations Act, ECF No. 1.) ("Pet.") Motion to On August 31, 2010, this Court granted Petitioner's Hear Petition for Temporary Injunction on the

Administrative Record and Affidavits.

(Order 5, ECF No. 11.)

Respondent Ozburn-Hessey Logistics, LLC ("OHL") filed an answer to the Petition on September 3, 2010, and a memorandum in opposition to the Petition on October 4, 2010. (Respondent's

Answer

to

Pet.,

ECF

No.

13;

Respondent's

Mem.

in

Opp'n

to

Temporary Injunctive Relief Under Section 10(j) of the National Labor Relations Act, ECF No. 25 ("OHL Mem.").) Petitioner filed

an amended memorandum in support of the Petition on September 10, 2010, and a reply brief on October 26, 2010. (Am. Mem., ECF

No. 18 ("Petitioner's Am. Mem."); Petitioner's Reply Br., ECF No. 33.) OHL filed a sur-reply brief on November 8, 2010. ("OHL Sur-Reply")

(Respondent's Sur-Reply Br., ECF No. 38.)

On January 6, 2011, Petitioner filed a letter notifying the Court that Administrative Law Judge John H. West ("ALJ West") had issued a decision and recommended order in an administrative proceeding between Petitioner and OHL, and attached that

decision to the letter.

(Letter, ECF No. 39; Decision, December OHL responded to

27, 2010, ECF No. 39-1 ("ALJ West Decision").)

the letter on January 14, 2011, and filed supplemental documents in support of its response on January 28, 2011. (Resp't Ozburn-

Hessey Logistics, LLC's Resp. to Petitioner's Communication with the Court, ECF No. 40 ("OHL Resp. to Letter"); Respondent's Notice of Filing, ECF No. 41.) For the following reasons, the Petition is GRANTED.

Petitioner's request that the Court order OHL to appear before the Court and show cause why an injunction should not issue is DENIED AS MOOT.

2

I. OHL provides (Ex. N,

Factual Background1 operates three warehouses to in Memphis from which it

logistical at 2, May

support 20,

multiple ECF No.

national 1-2.)

retailers. Carson

2010,

("ALJ

Decision")

In early May 2009, union organizational activity (Id. at 2-3.) Union (the On September 25, 2009, the United filed an election petition

began at OHL. Steelworkers

"Union")

seeking to represent OHL's employees. 2; Ex. L, at 1, ECF No. 1-2.) on March 16, 2010 at which,

(Ex. H, at 1, ECF No. 1-

An election was ultimately held of approximately 317 eligible

voters, 119 votes were cast in favor of the Union and 180 votes were cast against the Union. 1, 93.) Administrative Law Judge George Carson II ("ALJ Carson") and ALJ West found that OHL had committed numerous violations of (See Ex. L at 1; ALJ West Decision

The facts discussed in this Part derive from the administrative record and affidavits filed with this Court. Many of the facts are disputed. Because "fact-finding is inappropriate in the context of a district court's consideration of a 10(j) [29 U.S.C. § 160(j)] petition," the Court "need not resolve conflicting evidence between the parties" or make credibility determinations. Ahearn v. Jackson Hosp. Corp., 351 F.3d 226, 237 (6th Cir. 2003) (citations omitted). The Court need only identify evidence presented by Petitioner to the extent necessary to determine whether Petitioner has "present[ed] enough evidence in support of its coherent legal theory to permit a rational factfinder, considering the evidence in the light most favorable to the [National Labor Relations] Board, to rule in favor of the [National Labor Relations] Board" and whether a temporary injunction would be "just and proper." Glasser ex rel. NLRB v. ADT Sec. Servs., Inc., 379 F. App'x 483, 486 (6th Cir. 2010) (quoting Arlook ex rel. NLRB v. S. Lichtenberg & Co., 952 F.2d 367, 371 (11th Cir. 1992)); see Schaub v. W. Mich. Plumbing & Heating, Inc., 250 F.3d 962, 969 (6th Cir. 2001) ("[S]o long as facts exist which could support the Board's theory of liability, the district court's findings cannot be clearly erroneous."). In doing so, the Court does not identify conflicting evidence or resolve factual disputes.

1

3

the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151 et seq., before the election to discourage employees from

supporting the Union. Decision 92-93.)

(See ALJ Carson Decision 35; ALJ West

ALJ West found that OHL's conduct warranted (See ALJ West Decision 93.) Carson's and ALJ West's

setting aside the election results. OHL has filed exceptions to ALJ

decisions with the National Labor Relations Board ("Board" or "NLRB"). (See Ex. O, ECF No. 1-2; Respondent's Exceptions to

the Decision of the Administrative Law Judge, ECF No. 41-1.) Those appeals are now pending. Petitioner requests an

injunction seeking, among other things, for this Court to order OHL to cease and desist from committing unfair labor practices in violation of the NLRA and to reinstate employees allegedly discharged for supporting the Union pending the final

disposition of OHL's appeals by the Board. Petitioner's Am. Mem. 1.) The alleged hearing unfair before ALJ Carson

(See Pet. 1, 11-15;

addressed union

instances

of

labor

practices.

After

organizational

activity began, OHL managers made comments and performed actions expressing animosity toward unionization and threatening Area

employees with reprisals if they supported the Union.

Manager Phil Smith told employees in July 2009 that they would not be eligible for the gain share program, which included a bonus, and would lose other benefits, such as meals, cups, and 4

T-shirts, if a union represented the employees.

(See ALJ Carson On

Decision 3-4; Ex. P, at 203-04, 222-23, 903, ECF No. 19.)

October 15 and October 16, he confiscated and destroyed prounion literature on tables in an employee break room before the employees' break periods had ended. (See ALJ Carson Decision 6During that period, he

7; Ex. P, at 524-26, 541-44, 550-52.)

once shouted the name of an employee who had placed pro-union literature on the tables, held the literature over his head, tore apart the literature, and yelled, "Not in my warehouse" in front of a group of employees. (See Ex. P, at 550-52.)

In June 2009, Human Resources Manager Evangelia (Van) Young called employee Undenise Martin at home and asked her whether she had "heard anything about the Union activities" and why the employees were interested in unionizing. (See ALJ Carson

Decision 8; Ex. P, at 894-97.)

On August 31, Van Young called

the police to have two union organizers distributing pro-union literature to employees removed from public property, falsely claiming they were trespassing on private property. Carson Decision 9-10; Ex. P, at 568-82.) (See ALJ

In October, she told

employees at a group meeting that they would lose their jobs if they participated in an economic strike. (See ALJ Carson

Decision 10-11; Ex. P, at 440-46, 992.)

At that meeting, she

also said that, if OHL bargained with a union, OHL would reject

5

its proposals and leave employees without a contract for years. (See ALJ Carson Decision 11; Ex. P, at 473-78.) On September 18, Area Manager Kelvin Davis told employees that they could not distribute pro-union literature to employees in non-working areas on non-working time and ordered them to leave OHL's property. 139-52, 582-91.) (See ALJ Carson Decision 11-13; Ex. P, at

On September 25, Operations Manager Roy Ewing

ordered Carolyn Jones, who was distributing pro-union literature and discussing the Union with co-workers on break, to leave the premises. (See ALJ Carson Decision 13-15; Ex. P, at 154-56.)

After Carolyn Jones left, he asked employees what had been said, whether the employees had accepted pro-union literature, and if they had understood what they had been told. Decision 15; Ex. P, at 428-29, 458.) In a weekly report for the week ending August 17, 2009, Van Young discussed "presumed union activity" and reported that (See ALJ Carson

Carolyn Jones and Jerry Smith "are presumed the chairs of this drive." (ALJ Carson Decision 16; Ex. 92, at 1, ECF No. 19-3.)

On August 27, 2009, Van Young stated in an email that Renal Dotson "is one of the real disruptive individual[s] that [are] working hand in hand with the crew that is trying to drive a union into OHL Memphis." ECF No. 19-3.) (ALJ Carson Decision 16; Ex. 81, at 1,

On August 28, Renal Dotson and Jerry Smith were

6

terminated, and Carolyn Jones was suspended for five days. ALJ Carson Decision 16.)

(See

Renal Dotson received a warning on August 4 for performing unauthorized despite a work during order overtime from a when asked for to assistance the

standing

supervisor

perform

assistance triggering the warning. Ex. P, at 297-312.) OHL

(See ALJ Carson Decision 24; the warning without an

issued

investigation.

(See ALJ Carson Decision 24.)

At the hearing

before ALJ Carson, OHL presented no evidence of another employee receiving discipline for performing unauthorized (See id.) work during

overtime when asked for assistance.

On August 26,

Area Manager Phil Smith asked Renal Dotson, "Why you here with this company? Why you working for this company? Why don't you (Ex. P, at

go down Holmes Road somewhere and find a new job?" 326; see ALJ Carson Decision 22, 25.) Dotson meeting, other was terminated, OHL's without purportedly routinely for

On August 28, Renal missing such (See a pre-shift conduct ALJ by

despite

tolerating them.

employees

disciplining

Carson

Decision 25-26; Ex. P, at 332-35.)

At the hearing before ALJ

Carson, OHL presented no evidence that any employee had been disciplined before August 28 for missing a pre-shift meeting. (See ALJ Carson Decision 25.) Carolyn Jones was issued a warning on August 28 for

refusing to follow a supervisor's instruction to go to the back 7

of the metal detector line after an alarm went off although she followed the instruction. (See id. at 26-29; Ex. P, at 119-28.)

At the hearing before ALJ Carson, OHL presented no evidence that any employee other than Carolyn Jones had been disciplined for an incident at the metal detectors. 28.) (See ALJ Carson Decision

After Carolyn Jones protested that the discipline was

unfair, remarking that her supervisors were ganging up on her and accusing them of trying to do to her the same thing they had done to Renal Dotson, she was suspended for five days for being disrespectful, despite OHL's having tolerated another employee calling a supervisor a "damned liar" in a pay dispute. at 28-30; Ex. P, at 120-37, 280-81.) Jerry Smith was terminated on August 28. Decision 30; Ex. P, at 212.) (See ALJ Carson (See id.

After Carolyn Jones had left the

office after her first meeting with her supervisors that day, Jerry Smith, her boyfriend, was standing outside the fence

surrounding the work area and saw two supervisors pass her and appear to say something within the area surrounded by the fence. (See ALJ Carson Decision 30; Ex. P, at 227-28.) then saw Carolyn Jones start to cry. 30; Ex. P, at 131, 227-28.) warehouse, problem?" he yelled from Jerry Smith

(See ALJ Carson Decision

To be heard over the noise in the outside the fence, "What's the

(See ALJ Carson Decision 30-31; Ex. P, at 131, 228.)

Area Manager Phil Smith heard Jerry Smith from within the area 8

surrounded by the fence, walked quickly toward the fence, and told Jerry Smith, "You better be talking to her. Because if

you're talking to me me [sic], you're going to have a problem." (Ex. P, at 228.) of you." (Id.) Jerry Smith then said, "I was talking to both Throughout the exchange, Area Manager Phil

Smith and Jerry Smith were about seven or eight feet apart and separated by the fence. (See id. at 228-230.) A security guard

who was on duty nearby sat at her desk throughout the exchange and said nothing. left for lunch. (See id.) Carolyn Jones and Jerry Smith then

(See ALJ Carson Decision 31; Ex. P, at 228.) (See ALJ Carson

When they returned, Jerry Smith was terminated. Decision 32; Ex. P, at 234-35.)

The purported reason for his

termination was that Area Manager Phil Smith felt threatened by Jerry Smith's saying, "What's the problem?" from outside the fence. (See ALJ Carson Decision 32; Ex. P, at 234-35.)

Approximately one year before the incident between Jerry Smith and Area Manager Phil Smith, employee Dwight Beard walked to within twelve inches of Area Manager Phil Smith during a pay dispute, called Area Manager Phil Smith a "damned liar," removed his glasses, and said he "was going to get my money." Carson Decision 32; Ex. P, at 280-82.) In (See ALJ Area

response,

Manager Phil Smith said, "You want to make me get ghetto with you. We can take this outside." (See ALJ Carson Decision 32;

Ex. P, at 280, 284.)

After that incident, Dwight Beard received 9

a warning that he tore up in front of two supervisors. Carson Decision 32; Ex. P, at 283.) That warning

(See ALJ was not

reissued, and Dwight Beard continued working at OHL. Carson Decision 32; Ex. P, at 283.)

(See ALJ

In fact, at the pre-shift

meeting the next day, Area Manager Phil Smith apologized to Dwight Beard and shook hands with him. 32; Ex. P, at 284.) (See ALJ Carson Decision

Area Manager Phil Smith claimed during the

hearing before ALJ Carson that he had not felt threatened by Dwight Beard's conduct. 1261.) The hearing before ALJ West addressed other instances of alleged unfair labor practices. On November 8, 2009, Human (See ALJ Carson Decision 32; Ex. P, at

Resources Manager Van Young questioned employee Helen Herron, who was not an open union supporter, about the union activities of employees Glenora Rayford and Nichole Bledsoe. (See ALJ West

Decision 3, 54-56; Hr'g Tr. 126-27, July 14, 2010, ECF No. 261.) On November 10, 2009, Van Young called employee Glenora

Rayford, who was not an open union supporter, to her office and asked Rayford if she supported the Union. (See ALJ West At

Decision 57; Hr'g Tr. 288, July 15, 2010, ECF No. 26-2.)

that meeting, Van Young also attempted to obtain information about whether Rayford's daughter, employee Nichole Bledsoe,

supported the Union. July 15, 2010.)

(See ALJ West Decision 3, 57; Tr. 287-88,

Young also asked Rayford to speak with Bledsoe 10

and convince Bledsoe to abandon her support for the Union. ALJ West Decision 57; Tr. 288, July 15, 2010.)

(See

After that

meeting, Young and Rayford left the office together and, on approaching Rayford request if to Vice President Karen White's office, would White asked her West

Bledsoe, abandon

Rayford's support

daughter, the

listen (See

to

for

Union.

ALJ

Decision 3, 58; Tr. 289-90, July 15, 2010.)

Young then told

White that Rayford "could get through" to Bledsoe, to which White responded, "Okay, Glenora [Rayford]." (See ALJ West

Decision 58; Tr. 290, July 15, 2010.) On November 17, 2009, Rayford received a telephone call from Roy Ewing, the manager of the Remington Department, where Rayford had regularly worked two hours of overtime on an asneeded basis since May 2009. (See ALJ West Decision 58-59; Tr. During that call, Ewing told

295-300, 309-10, July 15, 2010.)

Rayford that he did not want her to work the next day at the Remington Department because "he didn't want this Union shit down in here." 2010.) Tr. (See ALJ West Decision 58-59; Tr. 314, July 15, (See her

Ewing then asked Rayford, "Are you for the Union?" July 15, 2010.) Rayford testified that

314,

conversation with Ewing ended with the following exchange: And [Ewing] told me that, if the conversation get back out in the warehouse, I'm not going to like it. They going to be some repercussion and I'm not going to like the outcome of it. And this conversation is over. He said, "I don't want you at Remington. If I 11

need you to work overtime," he said, "I will give you a call." (Id. at 315.) overtime call. at the As of July 15, 2010, Rayford had not worked Remington Department since receiving Ewing's

(See id.) At 9:30 a.m. on March 1, 2010, Manager Buddy Lowery told

employee Glorina Kurtycz, "You are on my list" and asked her what she thought about the Union. Tr. 171-72, July 14, 2010.) (See ALJ West Decision 59-60; Kurtycz told Lowery that she

supported the Union and complained about working conditions as Lowery took notes. July 14, 2010.) Washington handing called (See ALJ West Decision 59-60; Tr. 171-72,

Around 2:00 p.m. the same day, Manager Vania Kurtycz to her office inside and the accused her of and

out

pro-union

literature

warehouse

forcing employees to sign union cards. 68; Tr. 173-74, 181-82, July 14, 2010.)

(See ALJ West Decision Although Kurtycz denied

the accusations, she was sent home and was told to call the next day. (See Tr. 174-75, July 14, 2010.) After clocking out at

2:45 p.m., Kurtycz saw Jerry Smith distributing pro-union flyers outside OHL's facility and joined him. 68; Tr. 174-76, 182, July 14, 2010.) never distributed pro-union flyers. 2010.) (See ALJ West Decision Before then, Kurtycz had (See Tr. 174-76, July 14,

Area Manger Phil Smith saw her distributing flyers. The next day, Kurtycz was terminated for

(See id. at 176-77.)

12

purportedly violating OHL's non-solicitation policy although she did not do so. 2010.) II. Jurisdiction (See ALJ West Decision 68; Tr. 173-78, July 14,

Under Section 10(j) of the NLRA, 29 U.S.C. § 160(j), this Court has jurisdiction over Petitioner's request for a temporary injunction pending the Board's resolution of the underlying

unfair labor practice proceedings.

See 29 U.S.C. § 160(j); W.

Mich. Plumbing & Heating, 250 F.3d at 969; Frye v. Dist. 1199, Health Care & Soc. Servs. Union, 996 F.2d 141, 143-44 (6th Cir. 1993) (per curiam). It also has subject-matter jurisdiction See 28 U.S.C. §

under 28 U.S.C. § 1331 and 28 U.S.C. § 1345.

1331; 28 U.S.C. § 1345; Glasser ex rel. NLRB v. Heartland-Univ. of Livonia, 632 F. Supp. 2d 659, 662 (E.D. Mich. 2009). III. Standard of Review In deciding whether to grant a Section 10(j) injunction, this Court employs the "`reasonable cause/just and proper'

standard" employed by the Sixth Circuit Court of Appeals and district courts of this circuit. Ahearn, 351 F.3d at 234;

accord W. Mich. Plumbing & Heating, 250 F.3d at 969; HeartlandUniv. of Livonia, 632 F. Supp. 2d at 665. `reasonable cause/just and proper' standard "Specifically, the requires that a

district court find that (1) there is `reasonable cause' to believe that unfair labor practices have occurred, and that (2) 13

injunctive relief with respect to such practices would be `just and proper.'" Ahearn, 351 F.3d at 234 (quoting W. Mich.

Plumbing & Heating, 250 F.3d at 969); accord Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d 26, 29 (6th Cir. 1988) (citation omitted); Heartland-Univ. of Livonia, 632 F. Supp. 2d at 665. This Court must make both findings before issuing a § 10(j) injunction. See ADT Sec. Servs., Inc., 379 F. App'x at 485

(citing Ahearn, 351 F.3d at 234); Heartland-Univ. of Livonia, 632 F. Supp. 2d at 665. As required by the Sixth Circuit, "[p]roceedings pursuant to § 10(j) are subordinate to the unfair labor practice

proceedings to be heard before the Board."

Ahearn, 351 F.3d at

237 (quoting W. Mich. Plumbing & Heating, 250 F.3d at 969). This Court must not adjudicate the merits of the underlying unfair labor practice charges. Heating, 250 F.3d at 969). OHL argues that this Court should apply traditional Id. (quoting W. Mich. Plumbing &

equitable criteria in its analysis of the "just and proper" element as a matter of first impression. Sur-Reply 1-2.) (See OHL Mem. 7-8; OHL

To support that argument, OHL cites Schaub v.

Detroit Newspaper Agency, 154 F.3d 276 (6th Cir. 1998), a Sixth Circuit case stating in dicta, "Counsel for the Board

acknowledged at oral argument that the caselaw in this circuit does not flatly foreclose consideration 14 of equitable factors

such as this in § 10(j) cases, and we agree that it does not." Detroit Newspaper argues Agency, that 154 this F.3d Court at 280. should In not response, consider

Petitioner

traditional equitable criteria in light of Ahearn, a subsequent Sixth Circuit case. (See Petitioner's Reply Br. 2-3.)

In Ahearn, the court rejected an employer's argument that it should in replace § the "reasonable with cause/just and proper" equitable

standard

10(j)

cases

the

traditional

criteria used to decide petitions for injunctions. 351 F.3d at 234-36.

See Ahearn,

The court concluded that the "reasonable

cause/just and proper standard" was supported by longstanding Sixth Circuit precedent that the panel could not overrule and that the standard properly considered the employer hospital's special interests in maintaining a safe environment and optimal patient care. Although See id. OHL argues that Ahearn decided only that

traditional equitable criteria could not replace the "reasonable cause/just and proper" standard and left open whether district courts could consider traditional equitable criteria under the "just and proper" a element, in Ahearn the decided Eighth more. Ahearn Court of

distinguished

case

which

Circuit

Appeals adopted the approach OHL seeks here.

See id. at 236;

see also Sharp v. Parents in Cmty. Action, Inc., 172 F.3d 1034, 1038 (8th Cir. 1999) (concluding that the reference to "just and 15

proper"

in

§

10(j)

incorporates

traditional

equitable

principles).

Ahearn included Sharp in a citation as support for

the proposition that "a number of circuits have overhauled the `reasonable cause/just and proper' standard, instead adopting the `traditional' test." that approach with Ahearn, 351 F.3d at 236. circuits that have Contrasting retained the

other

"reasonable cause/just and proper" standard, the Sixth Circuit stated that it would continue to follow the approach taken by those circuits. The cause/just Sixth and See id. Circuit proper" recently standard applied in the "reasonable a § 10(j)

reviewing

injunction decision by a district court without consideration of equitable criteria. 485-86. circuits See ADT Sec. Servs., Inc., 379 F. App'x at

In that case, the court distinguished its approach from that have incorporated the traditional equitable

criteria for injunctions into the "just and proper" element. See id. at 485 n.2; cf. Kobell ex rel. NLRB v. United

Paperworkers Int'l Union, 965 F.2d 1401, 1409 n.3 (6th Cir. 1992) ("In section 10(j), Congress authorized injunctive relief upon a showing that such relief is just and proper and not upon the traditional, more stringent requirement of irreparable

harm.") (citation omitted).

Therefore, this Court will apply

the "reasonable cause/just and proper" standard to Petitioner's

16

injunction

request

without

consideration

of

traditional

equitable criteria. IV. Analysis argues has that there the is "reasonable and that cause" to

Petitioner believe that

OHL

violated

NLRA

temporary

injunctive relief is "just and proper."

(See Petitioner's Am. OHL argues

Mem. 5-20; Petitioner's Reply Br. 1-12; Letter 1-2.) that neither element is satisfied. Reply 2-6; OHL Resp. to Letter 3-8.) A. Reasonable Cause burden of showing `reasonable

(See OHL Mem. 8-18; OHL Sur-

"Petitioner's

cause'

is

`relatively insubstantial,' inasmuch as the proof requires only that the Board's legal theory underlying the allegations of

unfair labor practices be `substantial and not frivolous' and that the facts of the case be consistent with the Board's legal theory." Ahearn, 351 F.3d at 237 (quoting W. Mich. Plumbing & Put differently, "[Petitioner] must

Heating, 250 F.3d at 969).

present enough evidence in support of its coherent legal theory to permit a rational factfinder, considering the evidence in the light most favorable ADT to Sec. [Petitioner], Servs., Inc., to 379 rule F. in favor at of 486

[Petitioner]."

App'x

(quoting S. Lichtenberg & Co., 952 F.2d at 371). To satisfy the requirement that its legal theory be

"substantial and not frivolous," Petitioner need not prove a 17

violation of the NLRA or convince this Court of the validity of the Board's 250 theory F.3d of at liability. 969. In See W. Mich. whether Plumbing &

Heating,

deciding

Petitioner

satisfies the second requirement, that the facts of the case be consistent with the Board's legal theory, this Court "need not resolve conflicting evidence between the parties" or make

credibility determinations. Mich. Plumbing & Heating,

Ahearn, 351 F.3d at 237 (quoting W. 250 F.3d at 969). Indeed, fact-

finding is inappropriate.

Id. (citation omitted).

Petitioner

"must only produce some evidence in support of the petition." Gottfried ex rel. NLRB v. Frankel, 818 F.2d 485, 493 (6th Cir. 1987). This Court may consider direct and circumstantial evidence to determine OHL's motive in undertaking the challenged conduct. Ahearn, 351 F.3d at 237 (quoting W. Mich. Plumbing & Heating, 250 F.3d at 970). For instance, proximity in time between

protected activity and measures taken against an employee who engaged in that activity support an inference that OHL committed an unfair labor practice. Heating, 250 F.3d at 970). Petitioner argues that OHL's actions after union activity had begun violated sections 8(a)(1) and 8(a)(3) of the NLRA.2 Id. (quoting W. Mich. Plumbing &

2

In the Petition and the amended memorandum in support of the Petition, Petitioner argues that OHL violated sections 8(a)(3) and 8(a)(4) of the NLRA by disciplining employee Jennifer Smith for testifying before ALJ Carson.

18

(Petitioner's Am. Mem. 5-13, 15.)

Under Section 8(a)(3), an

employer commits an unfair labor practice "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." 29 U.S.C. § 158(a)(3); accord Temp-Masters, Inc. "A violation of

v. NLRB, 460 F.3d 684, 689 (6th Cir. 2006).

Section 8(a)(3) of the [NLRA] produces a derivative violation of Section 8(a)(1)." Temp-Masters, 460 F.3d at 689 (citing Metro.

Edison Co. v. NLRB, 460 U.S. 693, 698 n.4 (1983)); accord NLRB v. Consol. Biscuit Co., 301 F. App'x 411, 422 (6th Cir. 2008) (citations omitted). Under Section 8(a)(1), an employer commits an unfair labor practice by "interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in section [7]." 689. 29 U.S.C. § 158(a)(1); accord Temp-Masters, 460 F.3d at Section 7 guarantees employees "the right to self-

organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own

choosing, and to engage in other concerted activities for the
(Pet. 1-2, 14; Petitioner's Am. Mem. 14-15.) ALJ West concluded that OHL did not violate the NLRA by disciplining Jennifer Smith. (See ALJ West Decision 61-63.) After ALJ West's decision, Petitioner stated in a letter to the Court filed electronically that it no longer sought injunctive relief based on Jennifer Smith's suspension. (See Letter 1.) Thus, the Court regards Petitioner's claims based on Smith's suspension as withdrawn. To the extent not withdrawn, Petitioner has not demonstrated "reasonable cause" for injunctive relief based on those claims for the reasons stated in ALJ West's decision. (See ALJ West Decision 61-63.) Because Smith's suspension was the only basis on which Petitioner alleged a section 8(a)(4) violation, no alleged violation of that section remains before the Court.

19

purpose

of

collective

bargaining

or

other

mutual

aid

or

protection . . . ." F.3d at 689. "A

29 U.S.C. § 157; accord Temp-Masters, 460 section 8(a)(1) violation that the occurs when

substantial

evidence

demonstrates

employer's

statements, considered from the employees' point of view, had a reasonable tendency to coerce." Dayton Newspapers, Inc. v.

NLRB, 402 F.3d 651, 659 (6th Cir. 2005) (citations omitted). One of Petitioner's legal theories is that statements and conduct violated by OHL supervisors 8(a)(1). after (See union activity Am. had Mem. begun 5-6.)

Section

Petitioner's

Petitioner has offered evidence that Area Manager Phil Smith told employees in July 2009 that they would not be eligible for the gain share program, which included a bonus, and would lose other benefits, such as meals, cups, and T-shirts, if a union represented the employees. at 203-04, 222-23, 903.) that, in October, Human (See ALJ Carson Decision 3-4; Ex. P, Petitioner has also offered evidence Resources Manager Van Young told

employees at a group meeting that they would lose their jobs if they participated in an economic strike. (See ALJ Carson

Decision 10-11; Ex. P, at 440-46, 992.) Those facts are consistent with and support Petitioner's legal theory that OHL violated Section 8(a)(1), a theory that is substantial and not frivolous. at 660 ("[T]hreatening See Dayton Newspapers, 402 F.3d with loss of employment or

employees 20

other

adverse

consequences

should

they

strike,

or

trying

to

induce employees to rid themselves of the union by promising they would be of § better off without it are well-established V&S ProGalv,

violations

8(a)(1).")

(citations

omitted);

Inc. v. NLRB, 168 F.3d 270, 279 (6th Cir. 1999) ("It is well settled that an employer violates § 8(a)(1) of the [NLRA] by threatening to withhold benefits . . . for engaging in union activities.") (citations omitted); see also Consol. Biscuit Co., 301 F. App'x at 433-34 (concluding that substantial evidence supported the conclusion that an employer violated § 8(a)(1) when a supervisor had suggested that employees would probably lose benefits, such as holiday hams and turkeys, if a union represented them); Wilkie Co. v. NLRB, 55 F. App'x 324, 328 (6th Cir. 2003) (concluding the that "more than merely that substantial an employer

evidence"

supported

NLRB's

conclusion

violated § 8(a)(1) "by telling multiple employees they would lose their job or suffer retaliation if they went on strike"). Therefore, Petitioner has satisfied its burden of showing

reasonable cause to believe that OHL violated Section 8(a)(1) by threatening loss of benefits and reprisals if employees

unionized or participated in a strike. Petitioner has offered evidence that Area Manager Phil

Smith confiscated and destroyed pro-union literature on tables in an employee break room before the end of employees' break 21

periods on October 15, 2009, and October 16, 2009. Carson Decision has 6-7; also Ex. P, at 524-26, that, 542-44, on

(See ALJ 550-52.) 18,

Petitioner

offered

evidence

September

2009, Area Manager Kelvin Davis told employees they could not distribute areas on pro-union non-working literature time and to employees them in to non-working leave OHL's

ordered

property, and, on September 25, 2009, Operations Manager Roy Ewing ordered Carolyn Jones, who was distributing pro-union

literature and discussing the Union with co-workers on break, to leave the premises. 139-56, 582-91.) Those facts are consistent with and support Petitioner's legal theory that OHL violated Section 8(a)(1), a theory that is substantial and not frivolous. See United Parcel Serv., Inc. v. (See ALJ Carson Decision 11-15; Ex. P, at

NLRB, 228 F.3d 772, 776, 782 (6th Cir. 2000) (stating that an employer may not stop the distribution of union literature in a non-work area during non-working time and affirming the NLRB's conclusion that an employer violated § 8(a)(1) by prohibiting distribution of union literature in an employee break area

during non-working times); Nat'l Steel Corp., Great Lakes Steel Div. v. NLRB, 415 F.2d 1231, a 1233 (6th Cir. 1969) ("It is

generally

recognized

that

rule

prohibiting

employees

from

distributing union literature on their own time and in nonworking areas of the employer's 22 property is presumptively

invalid.") (citation omitted); see also Consol. Biscuit Co., 301 F. App'x at the 438-39 NLRB's (concluding conclusion that an substantial employer evidence §

supported

that

violated

8(a)(1) when a security guard told an employee that she could not distribute union literature on company property); Meijer, Inc. v. NLRB, 463 F.3d 534, 545 (6th Cir. 2006) (enforcing NLRB order prohibiting an employer from banning union solicitation in its parking lots or promulgating or publishing any such policy); Consol. Diesel Co. v. NLRB, 263 F.3d 345, 354 (4th Cir. 2001) ("[D]istributing union literature is a core activity protected by § 7. left for Thus, an employer may not confiscate union literature distribution time.") to employees in nonwork Jennie-O areas during 301

nonwork

(citations

omitted);

Foods,

N.L.R.B. 305, 338 (1991) (adopting an administrative law judge's conclusion that the vice president of an employer violated § 8(a)(1) by destroying while an pro-union was handbills present its left in in employees' lunchroom). of showing

lunchroom Therefore,

employee has

the

Petitioner

satisfied

burden

reasonable cause to believe that OHL violated Section 8(a)(1) by interfering with the distribution of union literature in nonwork areas on employees' non-working time. Petitioner has offered evidence that Human Resources

Manager Van Young told employees at a group meeting that, if OHL bargained with a union, OHL would reject its proposals and leave 23

employees

without

a

contract

for

years.

(See

ALJ

Carson

Decision 11; Ex. P, at 473-78.) conduct employees conveyed to the a message union

As found by ALJ Carson, that that it would be futile for

select

as

their

collective

bargaining

representative. message theory are that

(See ALJ Carson Decision 11.) with and support 8(a)(1), See NLRB

That conduct and legal is De

consistent OHL and

Petitioner's a v. theory E.I.

violated not

Section

that

substantial

frivolous.

DuPont

Nemours, 750 F.2d 524, 527-28 (6th Cir. 1984) ("An employer also violates section 8(a)(1) of the Act by threatening employees with reprisals and with the futility of unionization.")

(citations omitted); see also Consol. Biscuit Co., 301 F. App'x at 437 (concluding statement that the NLRB's the NLRA conclusion was that a by

supervisor's

violated

supported

substantial evidence where the supervisor told an employee that a union would not change anything); U.S. Elec. Motors v. NLRB, 722 F.2d 315, 317-18, 321-22 (6th Cir. 1983) (per curiam)

(enforcing an NLRB decision finding, in part, that an employer violated § 8(a)(1) when a manager communicated to employees that the plant would close if a union represented the employees); NLRB v. Fry Foods, Inc., 609 F.2d 267, 270-71 (6th Cir. 1979) (concluding that "more than substantial evidence" supported the NLRB's conclusion that an employer violated § 8(a)(1) by, among other things, telling employees it would not bargain with the 24

union even if it won a representation election).

Therefore,

Petitioner has satisfied its burden of showing reasonable cause to believe that OHL violated Section 8(a)(1) by communicating to employees that unionization would be futile. Petitioner occasions has offered evidence that OHL on numerous for Human

interrogated and union

employees

about In

their June

support 2009,

unionization

activities.

Resources Manager Van Young called employee Undenise Martin at home and asked her whether she had "heard anything about the Union activities" and why the employees were interested in On

unionizing.

(See ALJ Carson Decision 8; Ex. P, at 894-97.)

September 25, 2009, Operations Manager Roy Ewing asked employees what Carolyn Jones had told them while distributing pro-union literature, whether the employees had accepted the literature, and if they had understood what they had been told. Carson Decision 13-15; Ex. P, at 428-29, 458.) 2009, Human Resources Manager Van Young (See ALJ

On November 8, employee

questioned

Helen Herron, who was not an open union supporter, about the union activities of employees Glenora Rayford and Nichole

Bledsoe. 2010.)

(See ALJ West Decision 3, 54-56; Tr. 126-27, July 14, On November 10, 2009, Van Young called employee Glenora

Rayford, who was not an open union supporter, to her office and asked Rayford if she supported the Union. (See ALJ West

Decision 57; Tr. 288, July 15, 2010.) 25

At that meeting, Van

Young

also

attempted

to

obtain

information Bledsoe,

about

whether the

Rayford's Union. 2010.)

daughter,

employee

Nichole

supported

(See ALJ West Decision 3, 57; Tr. 287-88, July 15, Vice President Karen White asked Rayford if Bledsoe

would listen to Rayford's request to abandon support for the Union. 2010.) (See ALJ West Decision 3, 58; Tr. 289-90, July 15, On November 17, 2009, Rayford received a telephone call

from Roy Ewing, the manager of the Remington Department, who asked her, "Are you for the Union?" 59; Tr. 314, July 15, 2010.) (See ALJ West Decision 58-

At 9:30 a.m. on March 1, 2010,

Manager Buddy Lowery asked employee Glorina Kurtycz what she thought about the Union. 72, July 14, 2010.) Those facts are consistent with and support Petitioner's legal theory that OHL violated Section 8(a)(1), a theory that is substantial and not frivolous, because those interrogations (See ALJ West Decision 59-60; Tr. 171-

reasonably tended to restrain, coerce, and interfere with the employees' rights under the circumstances. v. NLRB, 482 F.3d 425, 436 of (6th the Cir. NLRA See Ctr. Constr. Co. 2007) when it ("An employer

violates

section

8(a)(1)

interrogates

employees about their union activities under circumstances in which the interrogation reasonably tends to restrain, coerce, or interfere with the employees' rights under the NLRA. assesses coerciveness in light 26 of, among other The Board the

things,

background, questioner's

the

nature

of and

the the

information place and

sought, method

the of

identity,

interrogation." (citing V&S ProGalv, 168 F.3d at 280)); Wilkie Co., 55 F. App'x at 327 ("An employer also violates Section 8(a)(1) by interrogating employees about their union sympathies or the union see sympathies also E.I. of their De co-workers.") 750 (citation at 528

omitted);

DuPont

Nemours,

F.2d the

(concluding

that

substantial

evidence

supported

NLRB's

finding that an employer violated § 8(a)(1) when a supervisor approached and questioned an employee about his reasons for

supporting the union).

Therefore, Petitioner has satisfied its

burden of showing reasonable cause to believe that OHL violated Section 8(a)(1) by interrogating employees about their union

activities and support and other employees' union activities and support. Petitioner Manager Van has offered asked evidence to that speak Human with Resources and

Young

Rayford

Bledsoe

convince Bledsoe to abandon her support of the Union. West Decision 57; Tr. 288, July 15, 2010.) That

(See ALJ fact is

consistent with and supports Petitioner's legal theory that OHL violated Section 8(a)(1), a theory that is substantial and not frivolous. See Med. Ctr. of Ocean Cnty. v. NLRB, No. 95-1043,

1996 WL 590878, at *1 (D.C. Cir. Oct. 7, 1996) (per curiam) (concluding that supervisors violated § 8(a)(1) by soliciting 27

employees to convince other employees to give up the union) (citations omitted); NLRB v. Redwing Carriers, Inc., 586 F.2d 1066, 1067 (5th Cir. 1978) (per the curiam) NLRB's (concluding finding that that an

substantial

evidence

supported

employer violated § 8(a)(1) by, among other things, soliciting employees to speak to other employees in opposition to a union). Therefore, Petitioner has satisfied its burden of showing

reasonable cause to believe that OHL violated Section 8(a)(1) by requesting that an employee convince another employee, her

daughter, to abandon her support of the Union. Petitioner has offered evidence that, on August 31, 2009, Van Young called the police to have to two union organizers from on

distributing public

pro-union

literature claiming

employees were

removed

property,

falsely

they

trespassing

private property. 82.)

(See ALJ Carson Decision 9-10; Ex. P, at 568-

That fact is consistent with and supports Petitioner's

legal theory that OHL violated Section 8(a)(1), a theory that is substantial and not frivolous. See Cumberland Farms, Inc. v.

NLRB, 984 F.2d 556, 558-59 (1st Cir. 1993) (concluding that an employer violated § 8(a)(1) by threatening to have union

organizers who were distributing handbills on public property arrested); Walgreen Co., 352 N.L.R.B. 1188, 1193 (2008) ("The Board has held that calling the police to have union organizers removed from public property violates Section 8(a)(1) of the 28

Act.

By claiming that union agents are trespassing on private

property when in fact they are not, and calling the police to eject them when they distributed literature to employees, a

respondent violates the Act.") (citations omitted).

Therefore,

Petitioner has satisfied its burden of showing reasonable cause to believe that OHL violated Section 8(a)(1) by contacting the police. Petitioner has offered evidence that that, on August 26, 2009, Area Manager Phil Smith asked Renal Dotson, "Why you here with this company? Why you working for this company? Why don't (Ex. P,

you go down Holmes Road somewhere and find a new job?" at 326; see ALJ Carson Decision 22, 25.)

The next day, Van

Young stated in an email that Renal Dotson "is one of the real disruptive individual[s] that [are] working hand in hand with the crew that is trying to drive a union into OHL Memphis." (ALJ Carson Decision 16; Ex. 81, at 1.) Given the substantial evidence suggesting anti-union animus proximate in time to Area Manager Phil Smith's remark and OHL's awareness Petitioner that has Renal offered Dotson was a that leading is union supporter, with and

evidence

consistent

supports its legal theory that OHL violated Section 8(a)(1), a theory that is substantial and not frivolous. See NLRB v.

Almet, Inc., 987 F.2d 445, 451-52 (7th Cir. 1993) (concluding that an employer violated § 8(a)(1) when a foreperson solicited 29

an employee to quit in order to convince him to stop his prounion activities); Roma Baking Co., 263 N.L.R.B. 24, 30 (1982) (concluding that a suggestion that employees could quit if they were not happy in the context of union activity violates §

8(a)(1)).

Therefore, Petitioner has satisfied its burden of

showing reasonable cause to believe that OHL violated Section 8(a)(1) by suggesting that Renal Dotson could quit. Another of Petitioner's legal theories is that OHL violated Section 8(a)(3) by discriminating against Renal Dotson, Carolyn Jones, Jerry Smith, Glorina Kurtycz, and Glenora Rayford in

their employment terms or conditions to discourage membership in the Union. (See Petitioner's Am. Mem. 7-13.) has offered evidence that Renal Dotson was

Petitioner

issued a warning on August 4, 2009, for performing unauthorized work during overtime from a when asked for to assistance, perform the despite a

standing

order

supervisor

assistance

triggering the warning. 297-312.) OHL issued

(See ALJ Carson Decision 24; Ex. P, at the warning without an investigation.

(See ALJ Carson Decision 24.) OHL presented no evidence

At the hearing before ALJ Carson, that another employee received

discipline for performing unauthorized work during overtime when asked for assistance. stated in an email (See id.) that Renal On August 27, 2009, Van Young Dotson "is one of the real

disruptive individual[s] that [are] working hand in hand with 30

the crew that is trying to drive a union into OHL Memphis." (ALJ Carson Decision 16; Ex. 81, at 1.) On August 28, 2009,

Renal Dotson was terminated purportedly for missing a pre-shift meeting, although OHL routinely tolerated such conduct by other employees without disciplining them. 25-26; Ex. P, at 331-35.) (See ALJ Carson Decision

At the hearing before ALJ Carson, OHL

presented no evidence that any employee had been disciplined before August 28, 2009, for missing a pre-shift meeting. ALJ Carson Decision 25.) Those facts are consistent with and support Petitioner's legal theory that OHL violated Section 8(a)(3) by disciplining and terminating Renal Dotson to discourage support for the (See

Union.

(See Petitioner's Am. Mem. 7.)

They suggest that OHL

identified Renal Dotson as a leading union supporter, gave him a written warning without any and investigation terminated him for for following conduct a it

supervisor's

instruction,

tolerated from other employees because he was a leading union supporter. Given the evidence suggesting that OHL's reasons for

disciplining Rental Dotson were pretextual and that OHL's true reason for disciplining and terminating him was because he was a leading supporter of the Union, Petitioner's theory is

substantial and not frivolous.

See Consol. Biscuit Co., 301 F.

App'x at 421-23 (stating that "if the employer fires an employee for having engaged in union activities and has no other basis 31

for

the

discharge,

or

if

the

reasons

that

he

proffers

are

pretextual, the employer commits an unfair labor practice" and concluding that substantial evidence suggested that an employer violated § 8(a)(3) and § 8(a)(1) by giving an employee a warning for discussing unionization with co-workers (quoting W.F. Bolin Co. v. NLRB, 70 F.3d 863, 870 (6th Cir. 1995))); Ahearn, 351 F.3d at 237-38 (stating that district courts may consider direct and circumstantial evidence to determine an employer's motive when undertaking challenged conduct and that "[t]his Court has held that an employer's termination of an employee for engaging in union activity violates § 8(a)(3).") (citation omitted); NLRB v. Gen. Fabrications Corp., 222 F.3d 218, 225-27 (6th Cir. 2000) (concluding that substantial evidence supported the NLRB's

finding that an employer violated § 8(a)(3) in light of the timing of the termination, a manager's false testimony about the reason for terminating the employee, and the anti-union animus shown by the employer) (citation omitted); Sam's Club v. NLRB, 141 F.3d 653, 655, 661-62 (6th Cir. 1998) (granting request for enforcement of NLRB decision finding that an employer violated the NLRA where substantial evidence suggested that it

disciplined an employee for circulating a petition about a wage grievance and distributing NLRB informational pamphlets to her co-workers); "disparate W.F. Bolin of Co., 70 F.3d at 871 (stating to that other

treatment

certain 32

employees

compared

employees employer's employee E.I.

with

similar

work past

records

or

offenses" in

and

an an

deviation an

from

practices of

discharging

support De

inference 750

discriminatory at 529-30

motivation); an

DuPont

Nemours,

F.2d

(considering

employer's disparate treatment of an employee compared to its treatment of other employees as a relevant factor in finding that substantial evidence supported the NLRB's finding that the employer discharged the employee in retaliation for his union activities). Therefore, Petitioner has satisfied its burden of

showing reasonable cause to believe that OHL violated Section 8(a)(3) by warning and discharging Renal Dotson. By doing so,

it has also established reasonable cause to believe that OHL's treatment of Renal Dotson produced a derivative violation of Section 8(a)(1). See Temp-Masters, 460 F.3d at 689.

Petitioner has offered evidence that, in a weekly report for the week ending August 17, 2009, Human Resources Manager Van Young discussed "presumed union activity" and reported that

Carolyn Jones was one of the presumed chairs of the union drive. (ALJ Carson Decision 16; Ex. 92, at 1.) Carolyn Jones was

issued a warning on August 28, 2009, for refusing to follow a supervisor's instruction to go to the back of the metal detector line after an alarm went off despite following the instruction. (See ALJ Carson Decision 26-29; Ex. P, at 119-28.) At the

hearing before ALJ Carson, OHL presented no evidence that any 33

employee other than Carolyn Jones had been disciplined for an incident at the metal detectors. (See ALJ Carson Decision 28.)

After Carolyn Jones protested that the discipline was unfair, remarking that her supervisors were ganging up on her and

accusing them of trying to do to her the same thing they had done to Renal Dotson, she was suspended for five days for being disrespectful, despite OHL's having tolerated another employee calling a supervisor a "damned liar" in a pay dispute. at 28-30; Ex. P, at 120-37, 280-81.) Those facts are consistent with and support Petitioner's legal theory that OHL violated Section 8(a)(3) by suspending Carolyn Jones to discourage support for the Union. (See (See id.

Petitioner's Am. Mem. 7.)

They suggest that OHL identified her

as a leading union supporter, gave her a written warning for a false reason, and suspended her for conduct it tolerated from other Given employees the because she was a leading that union supporter. for

evidence

suggesting

OHL's

reasons

disciplining Carolyn Jones were pretextual and that OHL's true reason for disciplining her was that she was a leading supporter of the Union, Petitioner's theory is substantial and not

frivolous.

See Consol. Biscuit Co., 301 F. App'x at 421-423;

Ahearn, 351 F.3d at 237-38; Gen. Fabrications Corp., 222 F.3d at 227; Sam's Club, 141 F.3d at 655, 661-62; W.F. Bolin Co., 70 F.3d at 871; E.I. DuPont De Nemours, 750 F.2d at 529-30; see 34

also Beverly Health & Rehab. Servs., Inc. v. NLRB, 297 F.3d 468, 483 (6th Cir. 2002) (finding substantial evidence in the record to support by the NLRB's finding an that an employer she violated engaged § in has

8(a)(1) protected

suspending union

employee

because

activities).

Therefore,

Petitioner

satisfied its burden of showing reasonable cause to believe that OHL violated Section 8(a)(3) by warning and suspending Carolyn Jones. believe By doing so, it has also established reasonable cause to that OHL's treatment of her produced a derivative

violation of Section 8(a)(1). 689.

See Temp-Masters, 460 F.3d at

Petitioner has offered evidence that, in a weekly report for the week ending August 17, 2009, Human Resources Manager Van Young discussed "presumed union activity" and reported that

Jerry Smith was one of the presumed chairs of the union drive. (ALJ Carson Decision 16; Ex. 92, at 1.) On August 28, 2009,

Jerry Smith was purportedly terminated for saying, "What's the problem?" when he saw Carolyn Jones, his girlfriend, crying on the other side of a fence, a comment overheard by Area Manager Phil Smith. 227-35.) (See ALJ Carson Decision 30-32; Ex. P, at 131, 212,

A security guard who was on duty nearby sat at her (Ex. P, at

desk throughout the exchange and did not intervene. 228-30.)

Area Manager Phil Smith claims to have felt threatened

by Jerry Smith's comment, although he claims not to have felt 35

threatened by employee Dwight Beard's walking to within twelve inches of him, calling him a "damned liar," and threatening "to get my money." 1261.) Those facts are consistent with and support Petitioner's legal theory that OHL violated Section 8(a)(3) by terminating Jerry Smith to discourage support for the Union. (See (See ALJ Carson Decision 32; Ex. P, at 280-84,

Petitioner's Am. Mem. 7-9.)

They suggest that OHL identified

him as a leading union supporter, misrepresented its reason for terminating him, and treated him more harshly than other

employees because he was a leading union supporter. evidence suggesting that OHL's reason for

Given the Jerry

terminating

Smith was pretextual and that OHL's true reason for terminating him was that he was is a leading supporter and not of the Union, See

Petitioner's

theory

substantial

frivolous.

Consol. Biscuit Co., 301 F. App'x at 421-423; Ahearn, 351 F.3d at 237-38; Gen. Fabrications Corp., 222 F.3d at 227; Sam's Club, 141 F.3d at 655, 661-62; W.F. Bolin Co., 70 F.3d at 871; E.I. DuPont De Nemours, 750 F.2d at 529-30. Therefore, Petitioner

has satisfied its burden of showing reasonable cause to believe that OHL violated Section 8(a)(3) by terminating Jerry Smith. By doing so, it has also established reasonable cause to believe that OHL's treatment of him produced a derivative violation of Section 8(a)(1). See Temp-Masters, 460 F.3d at 689. 36

Petitioner has offered evidence that, at 9:30 a.m. on March 1, 2010, Manager Buddy Lowery told employee Glorina Kurtycz, "You are on my list" and asked her what she thought about the Union. 2010.) (See ALJ West Decision 59-60; Tr. 171-72, July 14,

Kurtycz told Lowery that she supported the Union and (See Around

complained about working conditions as Lowery took notes. ALJ West Decision 59-60; Tr. 171-72, July 14, 2010.)

2:00 p.m. that day, Manager Vania Washington called Kurtycz to her office and accused her of handing out pro-union literature inside the warehouse and forcing employees to sign union cards. (See ALJ West Decision 68; Tr. 173-74, 181-82, July 14, 2010.) Although Kurtycz denied the accusations, she was sent home and was told to call the next day. After clocking out at 2:45 (See Tr. 174-75, July 14, 2010.) p.m., Kurtycz saw Jerry Smith

distributing pro-union flyers outside OHL's facility and joined him. 2010.) flyers. (See ALJ West Decision 68; Tr. 174-76, 182, July 14, Before then, Kurtycz had never distributed pro-union (See Tr. 174-76, July 14, 2010.) Area Manger Phil The

Smith saw her distributing flyers.

(See id. at 176-77.)

next day, Kurtycz was terminated for purportedly violating OHL's non-solicitation policy. July 14, 2010.) Those facts are consistent with and support Petitioner's legal theory that OHL violated Section 8(a)(3) by terminating 37 (See ALJ West Decision 68; Tr. 173-78,

Glorina

Kurtycz

to

discourage

support

for

the

Union.

(See

Petitioner's Am. Mem. 12-13.) learned she was a union

They suggest that, soon after OHL it terminated her for a

supporter,

pretextual reason.

Given the evidence suggesting that OHL's

reason for terminating her was pretextual and that its true reasons were that she supported the Union and distributed prounion flyers, Petitioner's theory is substantial and not

frivolous.

See Consol. Biscuit Co., 301 F. App'x at 421-423;

Ahearn, 351 F.3d at 237-38; Gen. Fabrications Corp., 222 F.3d at 227; Sam's Club, 141 F.3d at 655, 661-62; W.F. Bolin Co., 70 F.3d at 871. Therefore, Petitioner has satisfied its burden of

showing reasonable cause to believe that OHL violated Section 8(a)(3) by terminating her. By doing so, it has also

established reasonable cause to believe that OHL's treatment of her produced a derivative violation of Section 8(a)(1). Temp-Masters, 460 F.3d at 689. Petitioner has offered evidence that, on November 17, 2009, Glenora Rayford received a telephone call from Roy Ewing, the manager of the Remington Department where Rayford had regularly worked two hours of overtime on an as-needed basis since May 2009. (See ALJ West Decision 58-59; Tr. 295-300, 309-10, July During that call, Ewing told Rayford that he did not to work the next day at the Remington Department (See ALJ See

15, 2010.) want her

because "he didn't want this Union shit down in here." 38

West Decision 58-59; Tr. 314, July 15, 2010.)

Ewing then said

he did not want her at the Remington Department and not to work there unless he called her. of July 15, 2010, Rayford (See Tr. 315, July 15, 2010.) had not worked (See id.) overtime at As the

Remington Department since that call.

Those facts are consistent with and support Petitioner's legal theory that OHL violated Section 8(a)(3) by denying

Glenora Rayford overtime at the Remington Department because it perceived her to be a supporter of the Union and wanted to discourage support for the Union. 11-12.) denying (See Petitioner's Am. Mem.

They suggest that OHL discriminated against Rayford by her opportunities Given the to work overtime at the Remington theory is

Department.

evidence,

Petitioner's

substantial and not frivolous.

See NLRB v. Homer D. Bronson

Co., 273 F. App'x 32, 38 (2d Cir. 2008); Marathon LeTourneau Co. v. NLRB, 699 F.2d 248, 254-55 (5th Cir. 1983). Therefore,

Petitioner has satisfied its burden of showing reasonable cause to believe that OHL violated Section 8(a)(3) by denying overtime opportunities to Rayford. reasonable cause to By doing so, it has also established that OHL's treatment of Rayford

believe

produced a derivative violation of Section 8(a)(1). Masters, 460 F.3d at 689. Petitioner has demonstrated that the

See Temp-

legal

theory

underlying the allegations of unfair labor practices by OHL are 39

"substantial

and

not

frivolous."

Ahearn,

351

F.3d

at

237 The

(quoting W. Mich. Plumbing & Heating, 250 F.3d at 969). facts of this See id. of its case are consistent with Petitioner's

legal

theory. support

Petitioner has "present[ed] enough evidence in coherent legal theory to permit a rational

factfinder, considering the evidence in the light most favorable to [Petitioner], to rule in favor of [Petitioner]." ADT Sec.

Servs., Inc., 379 F. App'x at 486 (quoting S. Lichtenberg & Co., 952 F.2d at 371). required for this Therefore, Petitioner has made the showing Court to conclude that that there is

reasonable cause to believe that OHL has engaged in unfair labor practices. B. See id.; Ahearn, 351 F.3d at 237. Just and Proper

The "just and proper" element turns primarily on whether a temporary injunction is necessary to protect the NLRB's remedial powers under the NLRA. Ahearn, 351 F.3d at 239 (citing Detroit The relief to be granted necessary Board" that and to preserve not the a

Newspaper Agency, 154 F.3d at 279). must be "[o]nly remedial for the that power reasonably of the of

ultimate

must

"be

substitute

exercise

power."

Id.

(quoting

Detroit Newspaper Agency, 154 F.3d at 279). The court "must determine whether `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 40

remedial function of the Board.'"

W. Mich. Plumbing & Heating,

250 F.3d at 970 (quoting Nixon Detroit Diesel, 859 F.2d at 30). To determine whether injunctive relief is "just and proper," the legal standard the court "must apply is whether such relief is `necessary to return the parties to status quo pending the

Board's proceedings in order to protect the Board's remedial powers under the NLRA, and whether achieving status quo is

possible.'"

United Paperworkers Int'l Union, 965 F.2d at 1410

(quoting Frankel, 818 F.2d at 495); accord Calatrello ex rel. NLRB v. Automatic Sprinkler Corp. of Am., 55 F.3d 208, 214 (6th Cir. 1995). charged The "status quo" is "that which existed before the labor practices took place . . . ." Nixon

unfair

Detroit Diesel, 859 F.2d at 30 n.3; accord Automatic Sprinker Corp. of Am., 55 F.3d at 214. Therefore, "[i]nterim judicial

relief is warranted whenever `the circumstances of a case create a reasonable apprehension that the efficacy of the Board's final order may be nullified, or the administrative procedures will be rendered meaningless.'" Sheeran v. Am. Commercial Lines, Inc.

683 F.2d 970, 979 (6th Cir. 1982) (quoting Angle v. Sacks ex rel. NLRB, 382 F.2d 655, 660 (10th Cir. 1967)); see also Detroit Newspaper Agency, 154 F.3d at 279 ("Where the Board's remedial powers would be ineffective without a court order temporarily returning the protagonists to the positions they occupied before

41

occurrence of the alleged unfair labor practice, the district court normally has discretion to issue such an order."). Petitioner requests that this Court direct OHL to cease and desist certain acts and conduct that violate the NLRA. Pet. 12-14.) (See

Petitioner also requests that this Court direct

OHL to take certain affirmative action, including temporarily reinstating Renal Dotson, Jerry Smith, and Glorina Kurtycz to their former positions or substantially equivalent positions; temporarily expunging the discipline issued to Renal Dotson and Carolyn Jones; temporarily allowing Glenora Rayford to resume working overtime in the Remington Department when work is

available; and posting copies of this Court's order. at 14-15.)

(See id.

Petitioner argues that, without an injunction, any relief ultimately ordered by the NLRB would be futile because the time between OHL's unlawful employment practices and any relief

ordered by the NLRB would irreparably harm employees' support for the Union. (See Petitioner's Am. Mem. 16-20.) Petitioner

has offered evidence that OHL has committed numerous unlawful employment practices that have chilled employees' support for the Union and exercise of rights protected by the NLRA. As

discussed above, substantial evidence suggests that OHL violated the NLRA on numerous occasions during the election campaign. the union election, the Union 42 had 144 signed cards In from

employees

expressing

a

desire

for

union

representation,

but

received only 119 votes in its favor. W, at 1-3, ECF No. 19-4.) results of the election be

(See, e.g. id. at 16; Ex.

ALJ West has recommended that the set aside because OHL's conduct The has

prevented a fair election. number of employees on

(See ALJ West Decision 93, 95.) Union's organizing committee

the

declined because seven employees no longer attend meetings and refuse to accept union literature. 16.) (See Petitioner's Am. Mem.

Some of those employees have indicated they no longer (See id.) The rate at which the Union

support the Union.

obtained authorization card signatures greatly declined after the Union filed the election petition. (See id. at 16-17.)

Employees are afraid to exercise their protected rights and to support the Union because of OHL's conduct. 16-20; Ex. V, ECF No. 19-4; Ex. W.) (See, e.g., id. at

ALJ Carson and ALJ West

have ordered OHL to provide substantially identical relief to the relief sought by Petitioner in this case. Decision 36-37; ALJ West Decision 93-97.) In light of Petitioner's evidence suggesting pervasive (See ALJ Carson

unlawful employment practices, granting an injunction is in the public interest to effectuate the policies of the NLRA and to protect the NLRB's remedial powers. See Ahearn, 351 F.3d at Injunctive

239; W. Mich. Plumbing & Heating, 250 F.3d at 970.

relief is necessary to return the parties to status quo pending 43

the NLRB's proceedings in order to protect the NLRB's remedial powers under the NLRA. F.2d at 1410. See United Paperworkers Int'l Union, 965

The status quo in the relationship between OHL

and employees in this case is May 2009 when union organizational activity began and before any unlawful conduct occurred. See

Automatic Sprinker Corp. of Am., 55 F.3d at 214; Nixon Detroit Diesel, 859 F.2d at 30 n.3. Achieving that status quo is

possible by granting the injunctive relief Petitioner requests. See Automatic Sprinkler Corp. of Am., 55 F.3d at 214; United Paperworkers Int'l Union, 965 F.2d at 1410. The circumstances

of this case create a reasonable apprehension that the efficacy of the NLRB's final order may be nullified and the

administrative procedures will be rendered meaningless by OHL's conduct. See Am. Commercial Lines, Inc. 683 F.2d at 979. The

NLRB's remedial powers would be ineffective without an order from this Court temporarily returning OHL, its employees, and the Union to the positions they occupied before the alleged unfair labor practices began. F.3d at 279. The cease and desist the order requested to by Petitioner is See Detroit Newspaper Agency, 154

appropriate

under

circumstances

prevent

irreparable

chilling of support for the Union among employees and to protect the NLRB's remedial powers. See Lineback v. Spurlino Materials,

LLC, 546 F.3d 491, 500 (7th Cir. 2008) ("The longer that an 44

employer is able to chill union participation . . . the less likely it is that the union will be able to organize and to represent employees effectively once the NLRB issues its final order.") (citations omitted); W. Mich. Plumbing & Heating, 250 F.3d at 970-71 (affirming district court's order enjoining

discrimination against employees who engage in union activities based on the district court's conclusion that the effects of the employer's unfair labor practices would linger without such an order and employees' ability to exercise their rights to join a union would be chilled of if such 632 an order F. were 2d not at issued); 672-74

Heartland-Univ.

Livonia,

Supp.

(concluding that injunctive relief was just and proper where the petitioner necessary had to presented prevent evidence of that injunctive for a relief union was

erosion

support

among

employees); Ahearn ex rel. NLRB v. Audubon Reg'l Med. Ctr., 937 F. Supp. 617, 630 (W.D. Ky. 1996) (ordering an employer to cease and desist practices exercise of that discouraged rights); union support v. and

employees'

protected

Bordone

Talsol

Corp., 799 F. Supp. 796, 801-02 (S.D. Ohio 1992) (ordering an employer to cease and desist actions to intimidate and punish employees for supporting unionization pending final disposition by the NLRB); Gottfried ex rel. NLRB v. Purity Sys., Inc., 707 F. Supp. 296, 302-04 (W.D. Mich. 1988) (stating that courts have found a cease and desist order to be just and proper "where, as 45

here, there is reasonable cause to believe that the effects of unfair labor practices linger" and ordering an employer to cease and desist activities in violation of § 8(a)(1) and § 8(a)(3)) (citation omitted). The affirmative under the relief Petitioner requests is also by

appropriate

exceptional

circumstances

presented

this case for the same reasons.

See Overstreet ex rel. NLRB v.

El Paso Disposal, L.P., 625 F.3d 844, 856 (5th Cir. 2010) ("In exceptional injunction destruction irreparable cases . . . the district so in court as to may employ an the

ordering of

reinstatement, interest union's

prevent

employee to the

collective

bargaining, and the

injury

bargaining

power,

undermining of the effectiveness of any resolution through the Board's process.") (citation omitted); Ahearn, 351 F.3d at 239 (affirming district court's order finding that interim

reinstatement for three employees was just and proper because evidence activity, suggested causing W. that their to & terminations fear chilled for F.3d union union at 971

employees

reprisals 250

activities);

Mich.

Plumbing

Heating,

(affirming district court's order finding that reinstatement of a leading union organizer to his former position was just and proper because his absence could irreparably harm the union's chances of organizing the employees); Pye ex rel. NLRB v. Excel Case Ready, 238 F.3d 69, 74-75 (1st Cir. 2001) (stating that the 46

discharge adverse

of

active, on

open

union

supporters of

risks

a

serious and that

impact

employee

support

unionization

"[t]he absence of key union organizers can contribute to the erosion of support for a nascent union movement") (citations omitted); Purity Sys., 707 F. Supp. at 304 (ordering an employer to reinstate three employees to return the work force to status quo and decrease the risk of "serious adverse employee interest in unionization" and to post copies of the court's order at its facility). Because there is reasonable cause to believe that

OHL's activities were designed to discourage union support, it is appropriate to return the parties to status quo to counter the effects of those activities. See Frankel, 818 F.2d at 496

(concluding that reinstatement of union members by the district court was just and proper). the injunctive relief Therefore, this Court finds that by Petitioner is just and

requested

proper.

See Ahearn, 351 F.3d at 239.

OHL argues that injunctive relief is not just and proper because of Petitioner's delay in seeking injunctive relief.

(See OHL Mem. 16-18.)

Delay is a permissible consideration,

especially when the harm has already occurred and the parties cannot be returned to status quo. See Frankel, 818 F.2d at 495.

However, the Sixth Circuit has explained: [W]e find no authority for the proposition that district courts are required to consider the delay in filing a section 10(j) petition, or that a failure to 47

consider the delay is a proper basis for overturning the grant of injunctive relief. Rather than requiring a consideration of the number of days or months which have passed between the issuance of a complaint and the seeking of section 10(j) relief, we believe the appropriate focus is on whether it is necessary to return the parties to status quo pending the Board's proceedings in order to protect the Board's remedial powers under the NLRA, and whether achieving status quo is possible. Id. For the reasons discussed above, it is necessary to return

the parties to the status quo to protect the NLRB's remedial powers and achieving the status quo is possible. delay in filing the Petition is also less Petitioner's than periods

considered reasonable in other cases.

See, e.g., HeartlandThe Court accepts reasonable given

Univ. of Livonia, 632 F. Supp. 2d at 674-75. Petitioner's explanation that the delay was

OHL's ongoing conduct and the administrative processes in place to investigate and authorize § 10(j) injunction requests. Petitioner's Am. Mem. 19-20; Petitioner's Reply Br. 3-5.) V. Conclusion (See

For the foregoing reasons, there is reasonable cause to believe that OHL has engaged in unfair labor practices and that the injunctive relief requested by Petitioner is just and

proper.

See Ahearn, 351 F.3d at 234-37 (citations omitted).

Therefore, the Petition is GRANTED. The Court ORDERS OHL, its officers, representatives,

supervisors, agents, employees, and all persons acting on its

48

behalf or in participation with it, to cease and desist from the following acts and conduct, pending the final disposition of the matters involved herein by the Board: (a) Coercively interrogating employees about their union activities employees; (b) Threatening employees with loss of the gain share or sympathies and the union activities of other

program and other benefits if they select the Union as their collective bargaining representative; (c) Telling employees who support the Union that they should find another job; (d) Confiscating pro-union literature from break rooms prior to the ending of breaks; (e) Threatening that it would be futile for employees to select the Union as their collective bargaining representative; (f) Threatening employees with loss of their jobs if they participate in an economic strike; (g) Contacting the police to have Union agents removed from public property; (h) literature Interfering to their with fellow employees' employees in right to distribute areas on

nonworking

nonworking time;

49

(i)

Prohibiting

employees

from

engaging

in

lawful

solicitation and distribution at a location of the company at which they do not work; (j) Soliciting employees to encourage other employees to abandon their support for the Union; (k) Telling employees that they are no longer allowed to work with other employees because of the employees' union

activities and sympathies; (l) Threatening employees with unspecified reprisals if

employees discuss with other employees their conversations with supervisors concerning the employees' union activities; (m) refusing Warning, to allow suspending, employees and to discharging work overtime of employees, or and

otherwise union

discriminating

against

employees

because

their

activities in support of the Union; and (n) Interfering, restraining or coercing employees in the exercise of their rights guaranteed by Section 7 of the NLRA. This Court also ORDERS OHL, its officers, representatives, supervisors, agents, employees, and all persons acting on its behalf or in participation with it, to take the following

affirmative actions necessary to effectuate the policies of the NLRA pending the final disposition of the matters involved

herein by the NLRB:

50

(a) Within ten (10) days of the issuance of this Court's Order, offer Renal Dotson, Jerry Smith, and Glorina Kurtycz full reinstatement to their former jobs or, if those jobs no longer exist or have been filled, to substantially equivalent

positions, without prejudice to their seniority or any other rights or privileges previously enjoyed; (b) Within ten (10) days of the issuance of this Court's Order, temporarily expunge the discipline issued to Renal Dotson on August 3, 2009, and the discipline issued to Carolyn Jones on August 28, 2009, and not to rely on those disciplinary actions in issuing any future discipline; (c) Within ten (10) days of the issuance of this Court's Order, allow Glenora Rayford to resume working overtime in the Remington account when work is available; (d) Post copies of the Conclusion of this Court's Order, together with a Spanish translation prepared at OHL's expense and approved by Petitioner, at OHL's Memphis, Tennessee

facilities where notices to employees are customarily posted; maintain those postings during the NLRB's administrative

proceedings free from all obstructions and defacements; grant agents of the NLRB reasonable access to OHL's facilities to monitor compliance with this posting requirement; and (e) Within twenty (20) days of the issuance of this Court's Order, file with the Court, with a copy sent to Petitioner, a 51

sworn affidavit from a responsible official of OHL setting forth with specificity the manner in which OHL has complied with the terms of this Order, including how the documents have been

posted as required by this Order. So ordered this 5th day of April, 2011.

s/ Samuel H. Mays, Jr. SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE

52