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Sawyer v. Noah's ARK Processors, LLC

United States District Court, D. Nebraska

October 17, 2019

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,
v.
NOAH'S ARK PROCESSORS, LLC d/b/a WR RESERVE, Respondent.

          MEMORANDUM AND ORDER OF CONTEMPT

          JOHN M. GERRARD, CHIEF UNITED STATES DISTRICT JUDGE

         This 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.[1] 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 contempt.

         BACKGROUND

         Briefly 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.

         Noah's 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, including:

• 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 information;
• 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 to

[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).

         On May 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 at 48-49.[2]

         In what 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.

         On June 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.

         So 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.

         The 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.

         When 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.

         In the 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.

         Based 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 ...


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