United States District Court, D. Nebraska
PAULA S. SAWYER, Acting 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 OF CONTEMPT
M. GERRARD, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion (filing 26) of the
Acting Regional Director of the National Labor Relations
Board to hold the respondent, Noah's Ark Processors, in
contempt for its noncompliance with the Court's
Memorandum and Order of May 10, 2019 (filing 21) awarding the
Board injunctive relief pursuant to § 10(j) of the
National Labor Relations Act (NLRA), 29 U.S.C. § 160(j).
Based on the Board's initial showing, the Court ordered
Noah's Ark to show cause why the Board's motion
should not be granted. Filing 30. Noah's Ark has
not shown cause, to put it mildly. The Court will
grant the Board's motion to hold Noah's Ark
in contempt, and set this case for argument on the
appropriate compensatory and coercive sanctions and
discussion of how Noah's Ark can purge itself of its
summarized, in its May 10 memorandum and order, the Court
found convincing evidence that Noah's Ark had engaged in
a number of unlawful anti-union practices. Filing 21. As
relevant, the Court ordered Noah's Ark "to bargain
collectively with the [United Food and Commercial Workers
Union Local No. 293] as the exclusive collective-bargaining
representative" of covered employees "concerning
rates of pay, wages, hours of work, and other terms and
conditions of employment[, ]" and not to "[e]ngage
in bad faith bargaining." Filing 21 at 27-28. Noah's
Ark was also ordered not to "[d]irectly deal with
employees regarding terms and conditions of employment."
Filing 21 at 28. And more generally, Noah's Ark was
ordered not to "[e]ngage in conduct intended to
undermine the Union's bargaining representative
status" or "[e]ngage in conduct which, in any
manner, interferes with rights under § 7 of the
NLRA." Filing 21 at 28.
Ark was also ordered to take affirmative steps to meet its
legal obligations. Specifically, Noah's Ark was ordered
to take a number of actions on or before May 17, 2019,
• furnish the Union with bargaining unit information it
had requested on November 6, 2017, as well as a list of all
current bargaining unit employees' names and contact
• rescind any or all of the unlawful unilateral changes
to the employees' terms and conditions of employment; and
• file an affidavit setting forth the manner in which
Noah's Ark had complied with the Court's order.
Filing 21 at 29-30. And Noah's Ark was expressly ordered
[u]pon the Union's request, bargain in good faith with
the Union on a schedule providing for good-faith bargaining
for not less than 24 hours per month and not less than 6
hours per session, or on another schedule to which Noah's
Ark and the Union have mutually agreed, and appoint a
representative to this bargaining with the authority to
bargain, until the parties reach a complete CBA or a
good-faith impasse in negotiations.
Filing 21 at 29. Noah's Ark did not appeal from the
Court's order, although it could have. See28
U.S.C. § 1292(a)(1); Abbott v. Perez, 138 S.Ct.
2305, 2319-20 (2018).
13, 2019-the Monday after the Court's memorandum and
order-counsel for the Union wrote counsel for Noah's Ark,
requesting a bargaining schedule and demanding that
Noah's Ark "[r]escind all of the unlawful unilateral
changes to the employees' terms of conditions of
employment[.]" Filing 28 at 36. On May 31, counsel for
Noah's Ark replied, suggesting four specific dates in
June for negotiation. Filing 28 at 49-50. Counsel for the
Union replied the same day, promising to check those dates
with the Union, and reminding opposing counsel that
Noah's Ark had failed to provide bargaining unit
information to the Union as the Court had ordered. Filing 28
was either a remarkable coincidence or an act of bad faith,
the dates Noah's Ark had proposed for negotiation were
also the dates of Union officer nominations, which required
the Union's officials to be at a number of different
facilities where Union-represented employees worked, and to
be there for different workers' shifts. Filing 28 at
47-48, 189. Those dates had been known to Noah's Ark,
because they had been posted by Noah's Ark at its
facility at the Union's request. Filing 28 at 47-48, 189.
3, the Union's counsel advised counsel for Noah's Ark
of the scheduling conflict, and said that the Union would be
generally available for bargaining sessions in June. Filing
28 at 47-48. But that never happened, because counsel for
Noah's Ark did not respond until June 28 (the last
business day in June) proposing dates in July. Filing 28 at
47. Noah's Ark was also aware that Union officer
elections were July 16-so not surprisingly, July 16 was one
of the dates proposed. Filing 28 at 47, 189. But the parties
did, after a few more emails, agree to meet on the other
three dates. Filing 28 at 44.
Noah's Ark and the Union finally met at 10 a.m. on July
23, 2½ months after Noah's Ark had been ordered to
meet with the Union and negotiate in good faith. Filing 28 at
54. Noah's Ark was represented by administrative clerk
Mary Junker and CEO Fischel Ziegelheim. Filing 28 at 54. The
Union began by asking if Noah's Ark would finally provide
the information that the Union had requested in November 2017
and the Court had ordered Noah's Ark to provide to the
Union in May 2019. Filing 28 at 54. Ziegelheim and Junker
said that responsive information had been given to the Board,
but the Union representative explained that the Board and the
Union aren't the same thing, and that the Union
didn't have what it had asked for. Filing 28 at 54-55.
Ziegelheim and Junker left, claiming it would take 4 or 5
days to recompile the information. Filing 28 at 55.
Ziegelheim returned about 5 hours later with two manila
envelopes with information he said was for about 50
employees, and said the rest of the information would be
provided the next week. Filing 28 at 56. The meeting was
adjourned for the day without any actual bargaining.
Seefiling 28 at 56.
Union and Noah's Ark met again on July 30, and the Union
was given another manila envelope represented to contain
information for another 50 workers. Filing 28 at 60.
Noah's Ark then gave the Union a copy of the 2013
collective bargaining agreement with notes on it indicating
the sections Noah's Ark wanted to remove. Filing 28 at
60. Among other things, Noah's Ark proposed to remove
sections of the CBA relating to Union membership, grievances,
injuries on the job, and safety. Filing 28 at 60-61, 67-69.
Noah's Ark also proposed to take away extra vacation days
for workers with seniority, and eliminate the provisions for
funeral leave, jury duty, hospitalization, and vacation.
Filing 28 at 61, 70-72. And Noah's Ark proposed to remove
the section of the CBA providing for rates of pay, but not to
replace it. Filing 28 at 61-62, 72-73. The parties discussed
these issues and broke to caucus until 3 p.m., but Ziegelheim
didn't return after the break. Filing 28 at 62. The
Union's representatives went through the Union's
proposal and proposed some modifications, but Junker had no
response. Filing 28 at 62-63.
Noah's Ark and the Union met again on August 6,
Noah's Ark presented the Union with a 3- to 4-inch stack
of paper and represented it as the remaining information the
Union had requested. Filing 28 at 63. The Union brought up
the modifications it had suggested to its proposed agreement,
but Ziegelheim cut off the discussion, informing the Union
that Noah's Ark didn't plan to go back and make any
changes-that the Union had been presented with Noah's
Ark's "best and final proposal" on which
Noah's Ark did not intend to negotiate. Filing 28 at 63.
After the parties caucused, Ziegelheim repeated that he was
unwilling to negotiate on Noah's Ark's offer. Filing
28 at 63.
meantime, the Union had been attempting to conduct make-up
orientation sessions for workers hired since the Union's
representative had been barred from Noah's Ark's
facility in June 2017. Filing 28 at 82. Those efforts were
frustrated by Noah's Ark. Seefiling 28 at 82-87.
For instance, on August 1, after the Union's
representative finished explaining the Union's costs and
benefits to one of the workers, Noah's Ark's plant
manager told the worker that grievances should instead be
taken to a Noah's Ark "employee committee"
that, the plant manager explained, "doesn't cost you
anything." Filing 28 at 83. Similarly, during the next
session, the plant manager followed the Union's
representative by advocating for the "employee
committee" that, he said, "doesn't cost you
$271 a year in union dues. We don't charge nothing."
Filing 28 at 84; see filing 28 at 86. On another
occasion, the plant manager followed up the Union's
presentation by explaining that Nebraska is a right-to-work
state and that Noah's Ark had just given
employees a raise of $2 to $4 per hour. Filing 28 at 191.
on the Board's evidence of the foregoing, the Court
entered an order to show cause on September 18, directing
Noah's Ark to show cause why it should not be held in
contempt of the Court's injunction. Filing 30. In
response, Noah's Ark provided evidence that on
September 26-over a week after the
Court's order to show cause-it had finally provided the
Union with information responsive to the Union's November
2017 request. Filing 31-1. Noah's Ark also provided the
Court with an email chain between its counsel and the
Union's counsel, in ...