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Perez v. Noah's Ark Processors, LLC

United States District Court, D. Nebraska

May 10, 2019

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,



         The 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.[1] 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.

         I. BACKGROUND

         Noah's 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.

         Starting 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.

         At a 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.

         At the 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.

         Meanwhile, 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.

         The 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.

         When 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, 167-72, 182-90.

         At some 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, 136-37, 202-03.[2]

         Noah's 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.

         One 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.

         The 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.

         On July 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.[3]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 at 176-178.

         The 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.

         As part 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.

         Although 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.

         In the 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.

         At the 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.

         After 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, 343-44.

         The 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.


         Section 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.

         In 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).

         1. Irreparable Harm

         The 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.

         Thus, 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.

         If an 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 bargaining:

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.[4] 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.

         In 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.

         In sum, 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 1124-25.

         2. Likelihood of Success on the Merits

         The 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).

         The 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 each area.

         (a) Section 8(a)(1)

         Section 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).

         (i) Anti-Union Statements

         The 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.

         (ii) Firings

         The 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.

         The 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 ...

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