United States District Court, D. Nebraska
LEONARD J. PEREZ, Regional Director of the Fourteenth Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
NOAH'S ARK PROCESSORS, LLC d/b/a WR RESERVE, Respondent.
MEMORANDUM AND ORDER
M. GERRARD CHIEF UNITED STATES DISTRICT JUDGE.
Regional Director of the National Labor Relations Board has,
on its behalf, petitioned pursuant to § 10(j) of the
National Labor Relations Act, 29 U.S.C. § 160(j) (NLRA),
to enjoin alleged unfair labor practices engaged in by the
respondent, Noah's Ark Processors. As explained
below, the Court is at least partly persuaded that that the
Board is likely to succeed on its claims that Noah's Ark
has engaged in unfair labor practices, and that the remedial
purposes of the NLRA would be frustrated unless some
immediate action is taken pending the Board's
administrative enforcement proceedings. Accordingly-although
the Board will not get everything it asked for-the Court will
grant the Board's petition.
Ark is engaged in "the slaughter, processing, packaging
and non-retail sale of meat products" in Hastings,
Nebraska. Filing 1 at 3. It was party to a January 2013
collective bargaining agreement (CBA) with the United Food
and Commercial Workers Union Local No. 293; that CBA expired
on January 28, 2018. Filing 18-4 at 1-12.
in November 2017, the Union requested information from
Noah's Ark so it could prepare to negotiate a successor
agreement to the expiring 2013 CBA. Filing 18-4 at 17-19.
That request was renewed in December 2017 and repeatedly in
January, February, and March 2018. Filing 18-4 at 20-37. The
information was not provided. Filing 18-4 at 18-37.
supervisor-employee meeting in late 2017 or early 2018, the
Noah's Ark operations manager told employees that the
Union would be removed from the plant. Filing 15 at 77-78,
148. According to one employee, the workers asked for raises,
and in responding the operations manager told them that
"there's no union in the plant" and Noah's
Ark would "get rid of [the Union]" because
"they didn't allow them." Filing 15 at 19.
According to another employee, the workers were told that
raises could be given because of the Union's removal.
Filing 15 at 149.
same time, the Union was trying to get Noah's Ark to
actually engage in collective bargaining. See filing
18-4 at 20. The Union asked Noah's Ark for some dates to
meet, but Noah's Ark did not respond. Filing 18-4 at
20-23. Eventually, Noah's Ark offered to meet with the
Union in Perth Amboy, New Jersey. Filing 18-4 at 26. The
Union suggested that Hastings, Nebraska would be better.
Filing 18-4 at 26. Noah's Ark countered with negotiations
in Grand Island, Nebraska and offered a number of dates in
March 2018. Filing 18-4 at 28. The Union accepted any of the
dates offered, "provided that [Noah's Ark] provides
the requested information in the near future as
indicated." Filing 18-4 at 28. Eventually, they agreed
to at least start in Grand Island on March 22. Filing 18-4 at
33. At that meeting, Noah's Ark simply received the
Union's contract proposal and offered nothing of its own.
Filing 18-4 at 37. For further negotiations, Noah's Ark
offered April 25 and May 9. Filing 18-4 at 37. On March 28,
2018, the Union filed an NLRB charge based on Noah's
Ark's failure to bargain in good faith with the Union.
Filing 3 at 3-4.
on March 27, 2018, a group of employees gathered in the
cafeteria, intending to discuss with management the hiring of
a new employee at a higher wage than more senior employees.
Filing 14 at 258-60. A Noah's Ark superintendent was
asked why some people were making more than others, and why
raises hadn't been given. Filing 14 at 266. The
superintendent replied that it was because of the Union
contract. Filing 14 at 266.
superintendent left, and returned after 15 minutes
accompanied by the operations manager. Filing 15 at 269. The
meeting had started before the employees' shift, but by
this time they were scheduled to be at their stations. Filing
17 at 142-43. The operations manager told the employees that
anyone who didn't want to work could go home. Filing 14
at 270. The employees left, but the operations manager told
the superintendent to write down the names of some employees,
because "[h]e didn't want those employees back into
the building." Filing 14 at 270-71.
the group reached the parking lot, they spoke with the plant
manager, who told them that they should go back to their
workstations and discuss the problem that day after work.
They refused, explaining that if they "went in back to
the building and worked that day, they would forget about the
issue and [they] wouldn't have a solution to what [they]
had asked for." Filing 14 at 275. In response, the plant
manager told them that they could either go back to work or
leave the premises. Filing 17 at 96. They were told that if
they didn't leave, police would be called. Filing 14 at
276; filing 17 at 98. Ten employees were fired. Filing 18-4
at 256-66; see also filing 15 at 150-52, 158-61,
point, the Noah's Ark human resources manager created a
preprinted form for employees to sign if they wanted to
withdraw from the Union and stop Union dues from being
deducted from their pay. Filing 16 at 27-28. Some of the
forms were only in English, while others were in English and
Spanish. See filing 18-2 at 120-34; filing 18-4 at
132-80. About 60 signed forms were collected from employees
between September 2017 and July 2018. Filing 16 at 27; filing
18-2 at 120-34; filing 18-4 at 132-80. However, each employee
whose testimony about signing the form is cited by the Board
explained that they had been provided with the form
after they approached the Noah's Ark human
resources manager and asked how to stop paying union dues.
See filing 13 at 4; filing 15 at 49, 86, 126,
Ark also prepared a form captioned, "Request for
Nondisclosure of Confidential Employment Information."
See filing 18-4 at 181-231. The form was written in
English, and generally indicated that the signing employee
did not want Noah's Ark to disclose "confidential
information"-such as identification data and information
about hiring, salary, performance, or benefits-to be
disclosed without the employee's written consent.
See filing 18-4 at 181. Noah's Ark collected
about 50 signed forms. Filing 16 at 39. Dates on the forms
varied, but they were mostly between early and mid-2018.
See filing 18-4 at 181-231. The types of information
listed on the nondisclosure form bear significant similarity
to the information previously requested from Noah's Ark
by the Union. Compare filing 18-4 at 17-19
with filing 18-4 at 181.
employee, who could not read English, testified that he had
signed the nondisclosure form after being told that it was
necessary to complete his removal from the Union. Filing 15
at 88-91. That employee had previously authorized providing
his information to the Union, and it's not clear from the
record whether he understood the effect of signing the
subsequent form. See filing 15 at 88-96. Two other
employees who had left the Union identified their signatures
on the forms, but didn't remember signing them. Filing 15
at 126-27, 203-04. And one of them also said that because the
form was in English, she didn't know what it said. Filing
15 at 204.
parties finally met again on May 15, 2018, and Noah's Ark
did offer a written proposal. Filing 18-4 at 341. And in June
2018, the parties settled the NLRB bad-faith bargaining
charge pursuant to a settlement agreement that required
Noah's Ark to provide the Union with the information it
had requested and hold bargaining sessions "no less than
24 hours per month for at least six hours per session, or in
the alternative, on any another schedule to which the Union
agrees." Filing 18-4 at 122-25.
13, Noah's Ark provided information for 15 employees.
Filing 18-4 at 274-91. The information on even those 15
employees appears to be incomplete, and as far as the record
indicates, no other information has been provided on any of
the other employees potentially in the bargaining
unit.Eventually, information obtained from
Noah's Ark by the Board revealed that Noah's Ark had
unilaterally raised employee wages, without discussing them
with the Union. See filing 17 at 47-48; filing 18-1
Union returned to the NLRB with a July 23 charge, alleging
among other things that Noah's Ark had refused to bargain
in good faith and had engaged in various unlawful anti-Union
activities. Filing 3 at 6-7. Additional charges, and amended
charges, were filed in August, September, November, and
December 2018, and February 2019. Filing 3 at 8-24. Those
charges, as consolidated, form the basis of the underlying
administrative proceeding. Filing 3 at 25-37.
of its investigation, the Board issued subpoenas to a number
of Noah's Ark employees. See, e.g., filing 18-2
at 19. Interviews with the subpoenaed employees were
scheduled for November 7, 2019. See filing 18-2 at
19; filing 18-3 at 11. In late October, Noah's Ark
retained Kutak Rock, LLP to provide legal counsel to the
subpoenaed employees. Filing 18-3 at 1-13. A "Notice to
Employees" was provided-in English and Spanish-informing
employees that they might be contacted by the Board, that
they had the right to have legal counsel when speaking to the
Board, and that they could contact the Kutak Rock attorneys
that Noah's Ark would pay for "as a benefit to our
employees." Filing 18-4 at 253-55.
the notice said that employees were "not required or
compelled to report to or consult with [Noah's Ark]
regarding obtaining legal counsel," at least one
employee testified that he had been told by a plant manager
that he "needed a company attorney" and that it was
"mandatory" to speak with "the company
attorney." Filing 15 at 53-54; filing 18-4 at 253. Other
employees reported simply being sent to the office, where
counsel was waiting to speak to them. Filing 15 at 128-29,
139-40. One employee also reported that after the interview,
the plant manager questioned him about what the NLRB agent
had asked. Filing 15 at 58-60.
meantime, the parties had been engaged in
"negotiations." The parties met on July 13, but
unlike previous meetings at which Noah's Ark had been
represented by its legal counsel, Noah's Ark was now
represented by "Administrative Clerk Mary Junker."
Filing 18-4 at 341. According to the Union's
representative, before the meeting even started, Junker said
something to the effect of, "I don't know why I am
here. I don't know why they sent me. I can't make any
decisions." Filing 17 at 28. At the next session, on
July 27, Junker was accompanied by a plant manager, but he
only observed. Filing 17 at 29. Junker appeared alone at the
next two meetings, on August 17 and 22. Filing 18-4 at 341.
Junker testified that she was not authorized to agree to the
Union's proposals; instead, her function was to bring the
Union's proposals back to ownership. Filing 14 at 67.
August 17 meeting, the parties did agree on a few aspects of
the Union's initial March 22 proposal: they agreed to
move certain language from the management rights provision of
the CBA to the seniority provision, they agreed to clarify
that "benefits" meant health benefits, and they
agreed to update the anti-discrimination provisions of the
CBA. Filing 14 at 81. Junker did not have answers, at that
meeting, to the modified written proposal the Union had
provided on July 27. Filing 14 at 82; see filing
18-4 at 341. But at an August 30 meeting, Noah's Ark
rejected that proposal. Filing 18-4 at 343.
that, the parties settled into a cycle of
"negotiation": the Union would offer a proposal,
and then at the next meeting (usually a week later)
Noah's Ark would reject that proposal, but make no
counterproposal. See filing 18-4 at 343-44; see
also filing 14 at 87. Junker was the sole representative
for Noah's Ark at each meeting. See filing 18-4
at 343-44. Noah's Ark rejected five more Union proposals
this way, until the January 2, 2019 meeting at which
Noah's Ark finally offered another proposal: its
"Best and Final Proposal." Filing 18-4 at 81,
Best and Final Proposal did not include the matters on which
the parties had previously agreed on August 17, 2017, and did
not say anything about wages. Filing 18-4 at 81-83;
see filing 17 at 40-46; see also filing
18-4 at 7-8. At a final meeting on January 25, 2019, the
Union's representative asked several questions about the
Best and Final Proposal; Junker answered and the meeting
adjourned. Filing 17 at 49. No. deadline to respond to the
Best and Final Proposal was expressed. Filing 17 at 45, 47,
49. Nonetheless, on January 30, Noah's Ark declared an
impasse and unilaterally implemented the Best and Final
Proposal. Filing 14 at 97-98; filing 18-4 at 84, 117.
10(j) of the NLRA authorizes the Board to seek, and the Court
to grant, "such temporary relief or restraining order as
it deems just and proper" pending disposition of the
Board's administrative proceedings. First enacted in
1947, § 10(j) is a limited exception to the federal
policy against labor injunctions. Sharp v. Parents in
Cmty. Action, Inc., 172 F.3d 1034, 1037 (8th Cir. 1999).
Section 10(j) is reserved for a more serious and
extraordinary set of circumstances where the unfair labor
practices, unless contained, would have an adverse and
deleterious effect on the rights of the aggrieved party which
could not be remedied through the normal NLRB channels.
Minnesota Min. & Mfg. Co. v. Meter for & on
Behalf of NLRB, 385 F.2d 265, 270 (8th Cir. 1967);
see Sharp, 172 F.3d at 1034.
making that decision, the Court applies the familiar
four-factor test for establishing the propriety of
preliminary injunctive relief. Osthus v. Whitesell
Corp., 639 F.3d 841, 844-45 (8th Cir. 2011);
Sharp, 172 F.3d at 1038- 39; see
Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d
109, 113 (8th Cir. 1981) (en banc). That test weighs the
threat of irreparable harm to the movant, the balance of
harms, the movant's likelihood of success on the merits,
and the public interest. McKinney ex rel. NLRB v. S.
Bakeries, LLC, 786 F.3d 1119, 1122-23 (8th Cir. 2015)
(citing Dataphase, 640 F.2d at 113).
Court's inquiry must focus initially on the question of
irreparable harm: the Board must demonstrate "that the
case presents one of those rare situations in which the delay
inherent in completing the adjudicatory process will
frustrate the Board's ability to remedy the alleged
unfair labor practices." Id. at 1123;
Sharp, 172 F.3d at 1039. The relevant inquiry is
whether this is the rare case when a preliminary injunction
is necessary to preserve the effectiveness of the ordinary
adjudicatory process. McKinney, 786 F.3d at 1124.
the irreparable harm to be addressed under § 10(j) is
not harm to individual employees-rather, it is the harm to
the collective bargaining process or to other protected
employee activities if a remedy must await the Board's
full adjudicatory process. See Sharp, 172 F.3d at
1038; Hubbel v. Patrish LLC, 903 F.Supp.2d 813, 817
(E.D. Mo. 2012); Chester ex rel. NLRB v. Eichorn Motors,
Inc., 504 F.Supp.2d 621, 627 (D. Minn. 2007). The Court
must be able to conclude with "reasonable
probability" from the circumstances that the remedial
purposes of the NLRA would be frustrated unless immediate
action is taken. Minnesota Min. & Mfg. Co., 385
F.2d at 270; see Sharp, 172 F.3d at 1039.
The Court proceeds to examine the likelihood of success on
the merits, and the other relevant factors, only if the Board
clears the "relatively high hurdle" of establishing
irreparable injury. McKinney, 786 F.3d at 1123;
see Sharp, 172 F.3d at 1039.
employer replaces pro-union employees with nonunion
employees, continues to blatantly violate the NLRA, or
refuses to bargain and unilaterally withdraws recognition
from a union that has demonstrated support, a preliminary
injunction may appropriately prevent or counteract the
decline in support for the union that is likely to follow.
See McKinney, 786 F.3d at 1124-25. Here,
the Board argues that irreparable harm will come from
Noah's Ark's ongoing refusal to engage in collective
refusal to bargain in good faith is likely to irreparably
erode employees' support for their chosen representative
over time because the Union is unable to protect the
employees or affect their working conditions while the case
is pending before the Board. The employees predictably will
shun the Union because their working conditions will have
been virtually unaffected by collective bargaining for
several years, and they will have little, if any, reason to
support the Union. This lost support for the Union will not
be restored by a final Board order in due course. By the time
the Board issues its final order, it will be too late;
employees will have given up on their union.
Filing 2 at 31. The Court agrees. As the Board points out,
eroding support for the Union is already reflected in the
record: a number of employees have already asked to stop
paying Union dues, and given the timing, it's not hard to
connect that to the Union's ineffectual efforts to
negotiate on the employees' behalf. But that
ineffectiveness is attributable to Noah's Ark's
obstruction. And the Board's ultimate remedial
action is likely to have little effect if it only results in
compelling Noah's Ark to engage in collective bargaining
with a Union that's already lost its base of support.
addition, as will be discussed below, the Court finds that
the Board is at least reasonably likely to succeed on its
claim that several employees were unlawfully fired. The Court
recognizes that the purpose of preliminary injunctive relief
in this context is to protect the collective bargaining
process, not individual employees-but, at least attempting to
reinstate those employees is part of preserving the
Board's authority to provide effective relief, and
vindicating the Union's authority to represent its
bargaining unit. And while a substantial time has passed
since those terminations, the passage of even more time will
further decrease the likelihood that those workers will be
available for reinstatement. See Chester,
504 F.Supp.2d at 628.
Noah's Ark's blatant failure to engage in good-faith
collective bargaining, and refusal as a practical matter to
recognize the Union at all, establishes the propriety of
preliminary injunctive relief to "appropriately prevent
or counteract the decline in support for the union that is
likely to follow." McKinney, 786 F.3d at
Likelihood of Success on the Merits
Court must consider the Board's likelihood of success on
the merits, not in isolation, but in the context of the
relative injuries to the parties and the public.
Sharp, 172 F.3d at 1039. The purpose of this inquiry
into the merits is not to second guess the Board's
decision to commence enforcement proceedings. Id.
Rather, likelihood of success is relevant to the issuance of
a preliminary injunction because the need for the Court to
act is, at least, in part, a function of the validity of the
applicant's claim. Id. A party seeking
injunctive relief need not necessarily show a greater than 50
percent likelihood that it will prevail on the merits.
Planned Parenthood Minnesota, ND, S.D. v. Rounds,
530 F.3d 724, 731 (8th Cir. 2008). But an absence of a
likelihood of success on the merits strongly suggests that
preliminary injunctive relief should be denied. Barrett
v. Claycomb, 705 F.3d 315, 320 (8th Cir. 2013).
Board's supplemental brief on the administrative record
(filing 13) organizes the evidence into eight categories-four
ways in which Noah's Ark allegedly interfered with,
restrained, or coerced employees in the exercise of their
protected rights, in violation of § 8(a)(1) of the NLRA,
29 U.S.C. § 158(a)(1), and four ways in which Noah's
Ark allegedly refused to bargain collectively in violation of
§ 8(a)(5) of the NLRA, 29 U.S.C. § 158(a)(5). The
Court will consider the Board's likelihood of success in
7 of the NLRA, 29 U.S.C. § 157, guarantees employees the
right to organize and bargain collectively, and under §
8(a)(1), an employer commits an unfair labor practice if it
"interfere[s] with, restrain[s], or coerce[s] employees
in the exercise of their rights" under § 7. S.
Bakeries, LLC v. Nat'l Labor Relations Bd., 871 F.3d
811, 820 (8th Cir. 2017).
first thing the Board points to as a violation of §
8(a)(1) is perhaps the most obvious: statements by Noah's
Ark management that Noah's Ark intended to get rid of the
Union. See filing 13 at 2. Such statements have been
seen not only as context for other alleged violations of
§ 8, but as violations of § 8(a)(1) in their own
right. See NLRB v. Hardesty Co., 308 F.3d 859,
866-67 (8th Cir. 2002). There is also evidence that
Noah's Ark directly connected pay raises to removal of
the Union-which is perhaps more important, because it's
crystal-clear that an employer violates § 8(a)(1) by
offering employees benefits conditioned on their choice of a
bargaining representative. Sioux City Foundry Co. v.
NLRB, 154 F.3d 832, 841 (8th Cir. 1998). And Noah's
Ark does not even attempt to defend those remarks.
See filing 19.
next issue, though, is hotly contested: the Board contends
that Noah's Ark violated § 8(a)(1) with its March
27, 2018 firing of several of the employees who had gathered
in the cafeteria to address wage differences with management.
See filing 13 at 2-3. The Board characterizes their
walkout as a "work stoppage" protected by § 7.
Filing 13 at 2-3. Noah's Ark, on the other hand, insists
that the employees abandoned their jobs, rather than being
fired-and that even if they were fired, their conduct was an
"unprotected wildcat strike." Filing 19 at 6-10.
Court finds little merit to the argument that the employees
weren't fired-rather, they were told that they could
either return to work (as opposed to addressing their
grievance) or be removed by police. For present purposes,
there's at least a reasonable likelihood that the Board
will succeed on its claim that the employees were fired. So,
according to Noah's Ark, that places the ...