Wednesday, July 30, 2008
The NLRB has often been criticized for not seeking 10(j) injunctions enough (these are the discretionary injunctions that the NLRB can seek while a case is pending with the Board), but you can see why. In Timmins v. Narricot Industries, Judge Rebecca Beach Smith of the E.D.V.A. denied a 10(j) motion--despite finding reasonable cause that the employer committed ULPs. From BNA's Daily Labor Report (subscription required):
A federal court in Virginia July 24 denied a National Labor Relations Board regional director's request for a preliminary injunction against a manufacturer that withdrew recognition from a union, finding that even if Narricot Industries LP violated the National Labor Relations Act by improperly supporting an effort to decertify the union, issuing an injunction under Section 10(j) of the NLRA would not be "just and proper" [The Judge] said that an NLRB administrative law judge already has concluded that the company unlawfully solicited employee signatures to oust Carpenters and Joiners of America Local No. 2316, but the court made its own findings that there was a "substantial, employee-led effort to remove the Union" that was free from unlawful influence by the employer. . . .
Smith said that the appropriate standard of legal review in a Section 10(j) proceeding "is in somewhat of a state of flux in the federal courts." The "conventional approach," she said was for the court to determine whether the NLRB had shown reasonable cause to believe that an NLRA violation occurred and whether the issuance of an injunction was just and proper. Several courts have modified the standard, Smith said, but the U.S. Court of Appeals for the Fourth Circuit, in whose jurisdiction Narricot was located, "has yet to revisit the reasonable cause/just cause standard." Smith said that she would consider the NLRB petition under the traditional standard.
The court said that there was ample evidence to show reasonable cause that Narricot violated the NLRA. The company's human resource director, Kris Potter, assisted employees in preparing their decertification and supplied a Narricot intern, Anja Baumann, with an employee list used to contact employees during working hours. . . .
The court said, however, that even if Narricot violated the federal labor law, the injunctive relief requested by the NLRB was not appropriate. First, Smith said, "there was a substantial, employee-led effort to remove the Union which was separate and apart from any unlawful conduct by Narricot." The court said that the board's ALJ heard testimony that at least five employees other than Baumann circulated the petition to decertify Local 2316. "This effort was free from any significant involvement by Potter or Narricot," the court found.
Narricot did "impermissibly interject itself into the employee-led effort," the court said, but the question presented by the NLRB's Section 10(j) petition was whether an interim bargaining order was appropriate. The court said that the NLRB claimed that injunctive relief was needed to preserve the integrity of the collective bargaining process, but the employees opposed to representation by the Carpenters local "will suffer irreparable harm if this court orders reinstatement of a Union which a majority of Narricot's employees do not wish to represent them." . . .
The court said that the NLRB does not consider that a decline in membership shows a lack of majority support for a union. However, Smith said, "the amount of support for the Union, including support expressed through Union membership, is relevant to this court's determination of the status quo which existed prior to Narricot's unlawful conduct, because preservation or restoration of the status quo is the purpose of a §10(j) injunction."
There are a lot of issues with this case, including the Fourth Circuit's 10(j) standard. But what gets me the most is that the court independently found that the "status quo" was a situation in which an employer that unlawfully assisted a decert drive was in a position to unilaterally withdraw recognition. Obviously this blog's readership (see here for our recent discussion on Levitz and the unilateral withdrawal rule) doesn't include the judges on the rocket docket.