National Labor Relations Board v. Kellogg Company

Filing 66

ORDER. Signed by Judge Samuel H. Mays, Jr on 7/30/2014.

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

M.KATHLEEN McKINNEY, Regional
Director of Region 15 of the
National Labor Relations Board,
for and on behalf of the
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
vs.
KELLOGG COMPANY,
Respondent.

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No. 14-2272

ORDER

Before

the

Court

is

the

April

15,

2014

Petition

for

Temporary Injunction under 10(j) of the National Labor Relations
Act (the “Act”), brought by the General Counsel of the National
Labor

Relations

Board

(the

“Board”)

through

McKinney, Director of Region 15 of the Board
(Corrected Petition, D.E. 5.)
against

Respondent

impasse

over

Kellogg

non-mandatory

M.

Kathleen

(“Petitioner”).

The Board seeks temporary relief
Company

bargaining

(“Kellogg”)
issues

and

for

forcing

locking

out

employees at its Memphis, Tennessee plant in violation of 29
U.S.C. § 158(a)(1), (3), and (5).
On June 23, 2014, the Court

denied Kellogg’s motion to

dismiss for lack of jurisdiction and granted Petitioner’s motion

to consider the Petition based on the administrative record.
(D.E. 53; D.E. 54.)
On

May

27,

2014,

administrative record.1

Petitioner

filed

(Notice, D.E. 45.)

a

copy

of

Petitioner filed a

memorandum in support of the Petition on June 13, 2014.
Mem., D.E. 49.)

the

(Pet.

On the same day, the Bakery, Confectionery,

Tobacco Workers and Grain Millers International Union and its
Local 252-G (the “Union”) filed an Amicus brief in support of
the Petition.

(Amicus Brief, D.E. 48.)

June 30, 2014.

(Resp., D.E. 55.)

filed replies on July 10, 2014.
Reply, D.E. 62.)

Kellogg responded on

Petitioner and the Union

(Pet. Reply, D.E. 61; Amicus

Kellogg filed a sur reply on July 17, 2014.

(Sur Reply, D.E. 65.)

For the reasons that follow, the Petition

is GRANTED.
I.

Background

This action arises out of a labor dispute between Kellogg and
the Union.
by

a

(Jt. Ex. 5 at 1.)

mutually

consented

Kellogg and the Union are bound

Master

Agreement,

which

covers

four

Kellogg plants, including the Memphis plant, and is effective
from September 30, 2012, to October 3, 2015.
Ex. 1 at 2.)

(Id. at 50; Jt.

The Union and Kellogg were also parties to a

Supplemental Agreement applying only to the Memphis plant, which

1

Petitioner sought and obtained leave to submit the administrative record by compact disk, which is on file with the
Clerk’s office for the Western District of Tennessee, Memphis. The record citations in this Order reflect the exhibit
titles on the affidavit attached to the compact disk.

2

was effective from October 22, 2010, to October 22, 2013.
Supp. Agreement, Jt. 1.)

(See

Kellogg locked out the employees at

its Memphis plant after Kellogg and the Union failed to agree to
a

new

Supplemental

expired.

Agreement

before

existing

Agreement

(See Letters, Jt. Exs. 12 & 13.)

Kellogg

initiated

negotiations

Agreement on September 17, 2013.
Agenda,

the

Jt.

Ex.

6.)

During

for

a

new

Supplemental

(Jt. Ex. 5 at 1; Bargaining

the

first

negotiating

session,

Kellogg informed the Union that the Memphis plant needed to cut
costs significantly to remain competitive for work within the
Kellogg manufacturing network.
Vol.

3

at

Relations

334.)
for

Kristie

Kellogg,

(Jt. Ex. 5 at 1; Tr. Hearing

Chorny,

said

Senior

there

was

Director

of

significant

Labor
excess

capacity in Kellogg’s manufacturing network because demand for
breakfast cereal had declined.
costs,

Kellogg

wanted

to

(Trans. Vol. 3 at 334.)

change

the

“concept”

of

To curb
Casual

employees (or “Casuals”) and greatly expand their role at the
Memphis plant.

(Tr. Hearing Vol. 3 at 344.)

Chorny told the

Union that Kelllog “want[s] to redo the Casual employee to make
them the employee of the future.”

(Meeting Tr., Jt. Ex. 3(a) at

9.)
Kellogg had proposed similar across-the-board cuts to wages
and

benefits

Master

for

Agreement.

new

employees

(See

2005

during
Master

3

negotiations
Agreement

for

the

Negotiations

Company Proposals, GC Ex. 3; Hearing Tr. Vol. 1 at 107-108.)
During the 2005 negotiations for the Master Agreement, Kellogg
proposed

a

“qualified

two-tiered
Casual

manufacturing

wage

workforce”

facilities.

structure
to

(GC

be

Ex.

with

used
3

at

a

lower-paid

regularly
2.)

in

Kellogg

its
made

similar proposals during discussions preceding the parties’ 2009
and 2012 negotiations of the Master Agreement, but the parties
never agreed to implement a two-tiered pay structure as part of
the Master Agreement.

(See Hearing Tr. Vol. 1 at 112-116, 119-

120.)
The Master Agreement provides that Casual employees must
make $6.00 an hour less than Regular employees (or “Regulars”),
but does not define Casuals, the scope of their employment, or
provide for benefits.

(Master Agreement, Jt. Ex. 2 at 67.)

The

Supplemental Agreement provides that Casuals are employed “to
provide

regular

schedules[.]”
provision

employees
(Supp.

altering

Ag.,

Casuals’

with
Jt.

relief
Ex.

pay

or

1

from
at

extended

8.)

providing

There
them

work
is

no

benefits.

Among other restrictions, “Casual employees will be limited to
30% of the total number of Regular employees.”

(Id.)

Under

Kellogg’s 2013 proposal, there would be no cap on Casuals and no
limits on their work within the Memphis plant.
Test., Tr. Hearing Vol. 3 at 388.)

4

(See Chorny

The “only distinction going

forward between a regular and a casual employee” would be their
wages and benefits.
At

the

first

(Id.)
meeting,

the

Union

balked

at

Kellogg’s

proposed concept for Casuals, and the parties made no progress
afterward.

Kellogg’s written agenda for the second negotiating

session, held on September 18, 2013, stated that the Union had
“flatly rejected Kellogg’s proposal to expand the casual concept
in Memphis [the previous day], and indicated it would not be
providing a counter proposal.”
negotiating

session

on

(Jt. Ex. 6 at 1.)

September

26,

2013,

Chorny

During a
said

that

Kellogg’s proposal would change a Casual employee to “basically
what a new hire is today.”

(Meeting Tr., Jt. Ex. 3(e) at 17.)

Union representative Kevin Bradshaw (“Bradshaw”) responded that
Kellogg’s proposal should be “negotiate[d] at the Master level,”
that Kellogg was trying to “force” the proposal on the Union,
and that the Union would not negotiate over its details.

(Id.

at 18-19.)
In

a

negotiating

session

on

October

9,

2013,

Chorny

continued to press the Union to agree to Kellogg’s proposal or
to

propose

amendments.

She

said,

“I

think

you

need

to

understand the Casual of today is no longer what we are talking
about.”

(Jt. Ex. 3(j) at 2.)

different,

they

will

have

“The Casual of tomorrow will be

seniority

rights,

a

probationary

period, job bidding like a Regular employee [and] will be at the
5

negotiated [wage] rate for a Casual allowed for in the master.”
(Id.)

Bradshaw responded that the Union “would like to get away

from the Casual [concept] and just call them employees. You are
double talking, they are just employees.”

(Id.)

Chorny replied

that Kellogg had “to classify them somehow and they do not have
the same benefits and wage[s] as a Regular. Casual is already
established

and

in

place.”

(Id.)

Chorny

said

that,

under

Kellogg’s new concept of Casuals, a 30% cap was unacceptable.
(Id. at 13.)
When

questioned

about

the

details,

Chorny

conceded

to

Bradshaw that a Regular employee could be laid off for business
reasons and brought back as a Casual, to which Bradshaw replied:
[T]he answer is hell no, you need to jerk that off the
table. Hell no . . . . I have had companies pull this
crap out there and then say we are going to lay them
off for a while and then bring them back at new pay.”
(Id. at 16.)

The Union never provided a written counter offer

to Kellogg’s new Casual-employee concept.
On

October

16,

2013,

Kellogg

provided

the

Union

its

“Last/Best Offer,” informing it that Kellogg would lock out the
employees if the Union did not agree to the offer by October 22,
2013.

(Last/Best Offer, Jt. Ex. 5 at 1.)

To introduce the

offer, Kellogg wrote that its proposal would not “impact the
pay, benefits or terms of employment of our existing non-casual
regular employees[.]”

(Id.)

Kellogg’s offer was consistent

6

with its demands during negotiations: the cap on Casuals was
struck

though

and

a

provision

Regulars to return as Casuals.

was

added

allowing

(Id. at 4, 5, 6.)

laid

off

Casuals would

make $6 an hour less than Regulars and would not have benefits.
(Id. at 5.)
proposal

Casuals were added to provisions throughout the

that

had

applied

only

to

Regulars,

such

as

the

grievance procedure, making them indistinguishable from Regulars
except for pay and benefits.

(See generally id.; see also Tr.

Hearing Vol. 3 at 388.)
Petitioner
alter

the

Appendix,

asserts

Master
under

that

Kellogg’s

Agreement.

the

heading

The
“New

Last/Best

Master

Hire

Offer

Agreement’s

Progression

would
Wage

Schedule,”

provides that “Regular employees will be paid according to the
schedule
hires.

shown

below,”

which

would

not

(Master Agreement, Jt. 5 at 66.)

parties bargained for changes to

wages and

hires as part of the Master Agreement.
234.)

apply

to

new

Casual

Historically, the
benefits for new

(Hearing Tr. Vol. 2 at

In the “Overtime” section, the Master Agreement provides

“time and one-half will be paid for all hours worked in excess
of the normal workday” and “[d]ouble time will be paid for all
hours worked on Sunday.”

(Id. at 34.)

In its Last/Best Offer,

Kellogg proposes that Casuals would receive time and one-half
only for hours in excess of 40 hours during a work week, and

7

would not receive double time on Sundays.
Ex. 5

(Last/Best Offer, Jt.

at 7.)

On October 21, 2013, the Union’s attorney, Samuel Morris,
sent Chorny and Chris Rock, Kellogg’s plant manager, a letter
rejecting Kellogg’s Last/Best Offer.
asserted

that

were

proper only for Master Agreement negotiations.

(Id. at 2.)

“By

insisting

lockout,”

them

proposals

as

the

price

on

to

Casual

Morris

employees

upon

Kellogg’s

(Jt. Ex. 13.)

avoid

Morris

stated, “the Company is breaching the Master Agreement as well
as violating Sections 8(a)(1), 8(a)(5), and 8(d) of the Act.”
(Id.)

Kellogg locked out the employees on October 22, 2013.

They lost their pay and insurance benefits.

(See Jt. Exs. 11 &

12.)
II.

Jurisdiction
Under § 10(j) of the Act, 29 U.S.C § 160(j), this Court has

jurisdiction
injunction

over

pending

Petitioner’s
the

unfair-labor-practice

Board’s

request
resolution

proceedings.

See

29

for
of

a

temporary

the

underlying

U.S.C.

§

160(j);

Schaub v. West Michigan Plumbing & Heating, Inc., 250 F.3d 962,
969 (6th Cir. 2001); Frye v. Dist. 1199, Health Care & Soc.
Servs. Union, 996 F.2d 141, 143-44 (6th Cir. 1993) (per curiam).
(See also Order, D.E. 53.)
III.

Standard of Review

8

In deciding whether to grant a § 10(j) injunction, courts
apply the “reasonable cause/just and proper” standard employed
by the Sixth Circuit Court of Appeals and district courts in
this circuit.

Ahearn v. Jackson Hosp Corp., 351 F.3d 226, 234

(6th Cir. 2003); accord Schaub, 250 F.3d at 969; Glasser v.
Heartland-University of Livonia, 632 F.Supp.2d 659, 665 (E.D.
Mich.

2009).

“Specifically,

the

‘reasonable

cause/just

and

proper’ standard requires that a district court find that (1)
there

is

‘reasonable

cause’

to

believe

that

unfair

labor

practices have occurred, and that (2) injunctive relief with
respect to such practices would be ‘just and proper.’”
351

F.3d

at

234

(quoting

Schaub,

250

F.3d

at

Ahearn,

969);

accord

Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d 26, 29 (6th
Cir. 1988) (citation omitted); Glasser, 632 F.Supp.2d at 665.
court

must

injunction.

make

both

findings

before

issuing

a

§

A

10(j)

See Ahearn, 351 F.3d at 234.

To establish reasonable cause, the Board has a “relatively
insubstantial burden” to “produce some evidence in support of
the petition . . . .

[Petitioner] need not convince the court

of the validity of the Board’s theory of liability, as long as
the theory is substantial and not frivolous.”
Frankel, 818 F.2d 485, 494 (6th Cir. 1987).

Gottfried v.

Temporary relief is

“just and proper” when it is “necessary to return the parties to
status quo pending the Board’s proceedings in order to protect
9

the Board’s remedial powers under the Act.”

Kobell for and on

Behalf of N.L.R.B. v. United Paperworkers, 965 F.2d 1401, 1410
(6th Cir. 1992).

The “status quo” is defined as the condition

“existing prior to the adoption of the allegedly unfair labor
practice.” Id. (emphasis in original).
In

applying

the

“reasonable

cause/just

standard, “fact-finding is inappropriate.”
237.

and

proper”

Ahearn, 51 F.3d at

District courts should not resolve conflicting evidence or

make credibility determinations.
Kellogg

argues

that

the

Id.
Court

must

find

that

Kellogg’s

proposals clearly and unmistakably altered a term of the Master
Agreement to grant the Petition.
standard

is

the

“Board’s

The clear and unmistakable

traditional

test

for

determining

whether an employer’s unilateral actions are lawful.”
Hospitals,

350

introduced

in

NLRB
Tide

808,
Water

808

(2007).

Associated

Oil

The
Co.,

Provena

standard
85

NLRB

was
1096

(1949), where the Board held that the Union did not waive the
right to bargain over pensions by agreeing to a broadly worded
Management Functions clause.

Id. at 1098.

Since then, in decisions too numerous to cite, the
Board has applied the clear and unmistakable waiver
analysis to all cases arising under Section 8(a)(5)
where an employer has asserted that a general
management-rights provision authorizes it to act
unilaterally with respect to a particular term and
condition of employment.

10

Provena

Hospitals,

350

adopted the standard.

NLRB

at

812.

The

Supreme

Court

has

See, e.g., Metropolitan Edison Co. v.

N.L.R.B., 460 U.S. 693, 708 (1983).

In Metropolitan Edison Co.,

the Supreme Court held that it would “not infer from a general
contractual

provision

statutorily

that

protected

the

parties
unless

right

intended
the

to

waive

undertaking

a
is

‘explicitly stated.’ More succinctly, the waiver must be clear
and unmistakable.”
The

waiver

Id.

standard

does

not

apply

here.

Petitioner’s

claim is not that Kellogg unilaterally changed provisions of the
Master Agreement, and Kellogg’s defense is not that the Union
waived

its

employees.

right

to

bargain

over

the

wages

of

new

Regular

The dispute is about whether Kellogg’s demands on

Casual employees effectively altered the terms of employment of
new Regular employees, an issue the parties agree was not a
mandatory subject of bargaining.

Traditionally applied as a

“shield” against unilateral action by an employer, Kellogg can
point to no authority in which the “clear and unmistakable”
standard has been used as a “sword” against a union in a § 10(j)
action.

The

appropriate

standard

cause/just and proper” standard.
IV.

here

is

the

“reasonable

See Ahearn, 351 F.3d at 234.

Analysis
The parties agree that forcing impasse over terms settled

in the Master Agreement would violate the Act.
11

They disagree

about

whether

Agreement
that,

Kellogg’s

would

alter

the

proposals
Master

for

a

new

Agreement.

Supplemental

Kellogg

argues

because the Master Agreement does not define a Casual

employee, Kellogg is free to negotiate changes to the Casual
employee

program

without

violating

the

Master

Agreement.

Petitioner argues that Kellogg’s insistence on changes to the
terms of Casuals’ employment would alter the terms of employment
of

new

Regular

employees,

a

modification

of

the

Master

Agreement.
Sections 8(a)(5) and 8(d) of the Act require employers to
bargain in good faith with respect to wages, hours, and other
terms of employment.

See 29 U.S.C. § 158(a)(5)&(d).

Vanguard

Fire & Supply Co., Inc. v. N.L.R.B., 468 F.3d 952, 960 (6th Cir.
2006) (citing Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S.
203, 2010 (1964)).

Parties are not required to bargain over

non-mandatory subjects.

Vanguard, 468 F.3d at 960.

The parties

have no duty “to discuss or agree to any modification of the
terms and conditions contained in a contract for a fixed period,
if such modification is to become effective before such terms
and

conditions

contract.”

can

be

reopened

under

29 U.S.C. § 158(d).

non-mandatory

subject

to

impasse

the

provisions

12

the

“A party who insists upon a
or

as

a

precondition

bargaining violates [Section 8(a)(5)] of the Act.”
468 F.3d at 960.

of

to

Vanguard,

Imposing

a

lockout

over

the

failure

to

agree

to

non-

mandatory terms also violates § 8(a)(1) & (3) of the Act.

See

Teamsters Local Union No. 639 v. N.L.R.B., 924 F.2d 1078, 1082
(D.C.

Circuit

1991).

Section

8(a)(1)

makes

it

unlawful

to

“coerce employees in the exercise” of their bargaining rights
under the Act.

29 U.S.C. § 158(a)(1).

Section 8(a)(3) makes it

an unfair labor practice to “discriminat[e] in regard to hire or
tenure of employment or any term or condition of employment to
discourage membership in any labor organization.”
158(a)(3).

Imposing

a

lockout

over

29 U.S.C. §

non-mandatory

terms

is

unlawfully coercive and “discriminate[s] against the employees
for

their

activity.”
“Unless

participation

in

protected

collective

bargaining

See Teamsters Local Union No. 639, 924 F.2d at 1082.

the

parties

have

expressly

agreed

to

midterm

modifications of a fixed term contract, economic pressures may
not

be

invoked

in

the

furtherance

of

demands

for

contract

modifications.”

Chesapeake Plywood, 294 NLRB 201, 211 (1989),

enfd.

F.2d

Mem.

917

22

(4th

Cir.

1990).

See

also

C

&

S

Industries, 158 NLRB 454, 457 (1966); St. Vincent Hospital, 320
NLRB 42, 49 (1995).
A. Reasonable Cause
There
engaged

in

significant

is

reasonable

unfair

labor

evidence

cause

to

believe

practices.

supporting
13

a

that

Petitioner
substantial

Kellogg
has

has

offered

theory

of

liability.
to

See Gottfried, 818 F.2d at 494.

establish

reasonable

cause

is

Petitioner’s burden

“relatively

“inasmuch as the proof requires only

insubstantial,”

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.”
at

237.

Put

differently,

“[Petitioner]

Ahearn, 351 F.3d

must

present

enough

evidence in support of its coherent legal theory to permit a
rational factfinder, considering the evidence in the light most
favorable to [Petitioner], to rule in favor of [Petitioner].”
Glasser, 379 F. App’x at 486.
Petitioner’s

substantial

legal

theory

is

that

Kellogg’s

proposed terms on Casual employees are contrary to and would
modify terms in the Master Agreement.

Thus, Kellogg’s terms

would be an unlawful basis on which to force impasse and impose
a lockout under § 8(a)(1), (3) and (5) of the Act.
evidence

supports

Petitioner’s

theory.

The

Significant

Master

Agreement

governs the wages of new Regular employees and sets their pay
schedule,

and

the

totality

of

Kellogg’s

proposal

would

have

resulted in changes to those wage rates.
As their own negotiators admitted, Kellogg sought to change
the

definition

today.”

of

Casuals

to

“basically

(Jt. Ex. 3(e) at 17.)

what

a

new

hire

is

Kellogg’s proposals would have

made Causals the same as Regulars except for Casuals’ pay and
14

benefits, and would have removed any limit on Kellogg’s ability
to hire them.
it

could

lay

Casuals.

Kellogg also admitted that, under its proposal,
off

Kellogg

Regular
would

employees

never

have

and

bring

to

hire

them

back

another

as

Regular

employee, and Casuals would be the “employee[s] of the future.”
(Meeting

Tr.,

Jt.

Ex.

3(a)

at

9.)

In

effect,

Kellogg’s

proposals were not to change the Casual employee program, as it
insists it had the right to demand.

Rather, Kellogg effectively

demanded changes to the wage rates of new or rehired Regular
employees.

Those rates are set in the Master Agreement.

The

good-faith bargaining required by the Act does not allow Kellogg
to use creative semantics to force midterm changes in the wages
of new or rehired Regular employees in violation of the Master
Agreement.
If

Kellogg

forced

impasse

over

the

wage

rates

of

new

Regular employees, which this Court finds substantial basis for
concluding, Kellogg violated § 801(a)(1), (3), and (5) of the
Act.

The wage rates of new Regular employees were not mandatory

terms of bargaining, and Kellogg forced impasse and locked out
its employees because of the Union’s failure to negotiate and
agree to Kellogg’s proposed modifications of those wage rates.
See Vanguard, 468 F.3d at 960; Teamsters Local Union No. 639,
924 F.2d at 1082.

There is reasonable cause to believe that

Kellogg has engaged in unfair labor practices.
15

B. Just and Proper
The “just and proper” element turns on whether a temporary
injunction is necessary to protect the Board’s remedial powers
under the Act.

See id. at 239.

The court “must determine

whether it is in the public interest to grant the injunction, so
as to effectuate the policies of the [Act] or to fulfill the
remedial

function

(quotation

marks

of

the

Board.”

omitted).

The

Schaub,
Board’s

250

F.3d

remedial

at

970

powers

are

undermined when “the circumstances of a case create a reasonable
apprehension that the efficacy of the Board’s final order may be
nullified,

or

meaningless.”

the

administrative

procedures

will

be

rendered

Sheeran v. Am. Commercial Lines, Inc., 683 F.2d

970, 979 (6th Cir. 1982).

An injunction is just and proper when

it preserves the remedial power of the board by returning the
parties to the status that existed “before the charged unfair
labor practices took place[.]”
Petitioner

has

requested

Fleischut, 859 F.2d at 30 n.3.
an

order

directing

Kellogg

cease:
(a)

(b)
(c)

Refusing to bargain in good faith with the Union
as
the
exclusive
collective
bargaining
representative of the unit employees by insisting
to impasse on bargaining proposals that are
nonmandatory subjects of bargaining;
Locking out the bargaining unit employees in
furtherance of unlawful conduct calculated to
frustrate its employees’ bargaining rights;
Threatening to lock out the bargaining unit
employees in furtherance of unlawful conduct

16

to

(d)

calculated to frustrate its employees’ bargaining
rights; and
In
any
other
manner
interfering
with,
restraining, or coercing its employees in the
exercise of their Section 7 rights.

(Petition, D.E. 5 at 8.)

Petitioner also asks the Court to

order that Kellogg take the following affirmative steps:
(a)

(b)

(c)

(d)

Recognize and, upon request, bargain in good
faith with the Union as its employees’ exclusive
collective-bargaining representative concerning
their
wages,
hours,
and
other
terms
and
conditions of employment;
Within five (5) days of this Order, offer each
and every bargaining unit employee locked out on
October 22, 2013, full and immediate interim
reinstatement to his or her former position at
the terms and conditions in effect on that date,
or, if those positions no longer exist, to
substantially
equivalent
positions,
without
prejudice to their seniority or other rights and
privileges, displacing, if necessary, any newly
hired or reassigned workers;
Post copies of the district court’s order at
Respondent’s facility in all locations where
notices to employees are customarily posted,
including
the
website
www.kelloggnegotiations.com; said postings shall
be maintained during the pendency of the Board
proceeding
free
from
all
obstructions
and
defacements[;] and . . .
the Regional Director
of Region 15 of the Board [shall have] reasonable
access
to
[Kellogg’s]
facility
to
monitor
compliance with this posting requirement; and
Within twenty (20) days of the issuance of this
Order, serve upon the District Court, and submit
a copy to the Regional Director of Region 15 of
the Board, a sworn affidavit from a responsible
[Kellogg] official describing with specificity
the manner in which [Kellogg] has complied with
the terms of the Court’s order, including the
locations of the documents to be posted under the
terms of the Order.

(Id. at 9-10.)
17

It
relief.

is

just

and

proper

to

grant

Petitioner’s

requested

The lockout, which has deprived the employees of their

pay and health insurance, has been ongoing for nine months.

The

administrative process may continue for many months and even
years to come.
period

would

To allow the lockout to continue through that
place

significant

hardship

on

employees

in

furtherance of Kellogg’s bargaining position, which Petitioner
has

reasonable

cause

to

believe

is

unlawful.

undermine the remedial powers of the Board.

That

would

An injunction that

ends the lockout and compels Kellogg to negotiate in good faith
without forcing impasse on provisions in the Master Agreement
would return the parties to their status prior to the lockout.
See Ahearn, 351 F.3d at 234; Kobell, 965 F.2d at 1410.
Accordingly, it is just and proper to end the lockout and
prohibit Kellogg from forcing impasse over terms in the Master
Agreement,
subsume

including

all

new

any

hires

terms

at

pay

that

would

below

that

Regulars in the Master Agreement.
requirements
Board’s

Petitioner

remedial

powers

will

help

are

undermined

adhere to the other requirements of this Order.
V.

Conclusion

18

Casuals

provided

for

to
new

The posting and monitoring

requests
not

allow

ensure
by

a

that
failure

the
to

For the foregoing reasons, there is reasonable cause to
believe that Kellogg has engaged in unfair labor practices and
that the injunctive relief requested by Petitioner is just and
proper.
The Court ORDERS Kellogg, its officers, representatives,
supervisors, agents, employees, and all persons acting on its
behalf or in participation with it, to cease from the following
acts and conduct, pending the final disposition of the matters
involved herein by the Board:
(a)

Refusing

to

bargain

in

good

faith

with

the

Union

by

insisting to impasse on proposals that would effectively
change the wage rates of new Regular employees, or would
allow Kellogg to hire only new Casual employees;
(b)

Locking out the bargaining unit employees in furtherance of
a

bargaining

position

that

would

effectively

change

the

wage rates of new Regular employees, or would allow Kellogg
to hire only new Casual employees;
(c)

Threatening to lock out the bargaining unit employees in
furtherance of a bargaining position that would effectively
change the wage rates of new Regular employees, or would
allow Kellogg to hire only new Casual employees; and

(d)

In

any

coercing

other

manner

Kellogg’s

interfering

employees

Section 7 rights.
19

in

with,
the

restraining,

exercise

of

or

their

Kellogg is further ORDERED to:
(a)

Recognize and, upon request, bargain in good faith with the
Union

as

Kellogg’s

bargaining

employees’

representative

exclusive

concerning

their

collective-

wages,

hours,

and other terms and conditions of employment;
(b)

Within five (5) days of this Order, offer each and every
bargaining unit employee locked out on October 22, 2013,
full

and

immediate

interim

reinstatement

to

his

or

her

former position at the terms and conditions in effect on
that

date,

or,

substantially

if

those

equivalent

positions

no

positions,

longer

without

exist,

to

prejudice

to

the employee’s seniority or other rights and privileges,
displacing,

if

necessary,

any

newly

hired

or

reassigned

workers;
(c)

Post copies of this Order at Kellogg’s Memphis facility in
all locations where notices to employees are customarily
posted, including the website www.kelloggnegotiations.com;
those postings shall be maintained during the pendency of
the

Board

proceeding

free

from

all

obstructions

and

defacements; and the Regional Director of Region 15 of the
Board

shall

facility

to

have

reasonable

monitor

access

compliance

requirement; and

20

to

Kellogg’s

with

this

Memphis
posting

(d)

Within twenty (20) days of the issuance of this Order,
serve upon the District Court, and submit a copy to the
Regional

Director

of

Region

15

of

affidavit from a responsible Kellogg

the

Board,

a

sworn

official describing

with specificity the manner in which Kellogg has complied
with the terms of this Order, including the locations of
the documents to be posted under the terms of the Order.

So ordered this 30th day of July, 2014.
s/ Samuel H. Mays, Jr. ___ _
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

21