D'Amico v. Townsend Culinary, Inc.

• Decision Date: 30 September 1998
• Docket Number: No. Civ.A. AW 98-2673.,Civ.A. AW 98-2673.
• Citation: 22 F.Supp.2d 480
• Parties: Louis J. D'AMICO, Regional director of Region 5 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. TOWNSEND CULINARY, INC., Respondent.
• Court: U.S. District Court — District of Maryland

22 F.Supp.2d 480

Louis J. D'AMICO, Regional director of Region 5 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. TOWNSEND CULINARY, INC., Respondent.

No. Civ.A. AW 98-2673.

United States District Court, D. Maryland, Southern Division.

September 30, 1998.

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Gabriel A. Terrasa, Baltimore, MD, and Angela S. Anderson, Washington, DC, for petitioner Louis J. D'Amico.

Stanley B. Rohd, Towson, MD, Barry M. Willoughby, Wilmington, DE, for respondent Townsend Culinary, Inc.

Carey R. Butsavage, Marc A. Stefan, Washington, DC, for amicus curiae United Food and Commercial Workers Union, Local 400.

MEMORANDUM OPINION

WILLIAMS, District Judge.

Introduction

Presently before the Court is a petition for interim injunctive relief under Section 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j). The Court has fully considered the petition, the transcript from the hearing held before an administrative law judge¹, exhibits, memoranda, and the arguments made by counsel before this Court. For the reasons that will follow, the Court will grant the petition in part, and deny it in part.

Background

Petitioner is the Regional Director of Region 5 of the National Labor Relations Board ("Board"), and has filed this petition on its behalf. Respondent is a Delaware corporation, involved in the business of processing food products. On May 17, 1996, the employees of Respondent's Laurel, Maryland processing plant voted, by a margin of two to one, for union representation. On July 19, 1996, the Board certified the United Food & Commercial Workers Union, Local 400, AFL — CIO ("Union"), a labor organization within the meaning of Section 2(5) of the National Labor Relations Act, 29 U.S.C. § 152 et al. ("NLRA"), as representative of a collective bargaining unit. This unit was defined as:

[A]ll full-time and regular part-time employees, including Thermo Processing Operations, employed by the employer at its Laurel, Maryland, facility; but excluding all truck drivers, casual and temporary employees, owners, managers, room supervisors, confidential employees, owners, managers, room supervisors, confidential employees, guards and supervisors as defined by the Act.

Petitioner's Memorandum Exhibit 1 at 3.

Bargaining between Respondent and the Union occurred between January 1997 and October 22, 1997. On April 30, 1997, the parties submitted a set of final offers. In May of that year, the employees unanimously rejected Respondent's offer. On May 30, 1997, Respondent and Union again submitted final offers, but neither was accepted.

In October, 1997, Respondent and the Union had their last session, in front of a Federal Mediation and Conciliation Services mediator. No agreement was made. On November 21, 1997 Respondent withdrew recognition from the Union.

On December 1, 1997, Respondents implemented many improvements for its employees including a S.50 per hour pay increase, the reduction in the amount employees had to pay in terms of health insurance premiums, vacation benefits, and the conversion of some employees from a temporary to a permanent status. These improvements were better than anything ever offered to the Union by Respondent.

On March 11, 1998, Leonardo Palacios ("Palacios"), the head Union steward in the plant, was disciplined for allegedly violating Respondent's no solicitation and distribution policy. On March 13, 1998, allegedly in response to Palacios confusion over the terms of the policy, Carlos Holgado ("Holgado"), Respondent's Human Resources Director, posted a "clarification" to that policy. On April 21, 1998, Respondent discharged Palacios for allegedly violating the clarified policy.

The underlying case alleging, among other claims, unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the NLRA is presently pending before Administrative Law Judge William Kocol. The hearing before Judge Kocol opened on May 12, 1998 and closed June 18, 1998.

Only a few of the allegations in the case before Judge Kocol are currently before the Court for the purposes of injunctive relief. According to Petitioner, "[t]he specific allegations for which injunctive relief is being sought from this court are Respondent's unlawful withdrawal of recognition from the Union, respondent's refusal to bargain in good faith, Respondent's unlawful discharge of Leonardo Palacios and Respondent's promulgation and enforcement of overly broad non distribution rules." Petitioner's Memorandum at 6-7.

On August 7, 1998, Petitioner filed the petition with this Court, and moved that the Court grant the petition on the basis of the transcript of the hearing before Judge Kocol. On August 11, 1998, the Union moved for the Court to allow it to submit an Amicus Curiae Brief. The Court granted that motion on September 2, 1998. On September 18, 1998, a hearing on the petition was held in open court. The Court did not conduct a formal evidentiary hearing; there was not any live testimony presented.

Discussion

Petitioner seeks an injunction under Section 10(j) of the NLRA, which provides:

The Board shall have power, upon issuance of a complaint as provided in subsection (b) charging that any person has engaged in or is engaging in an unfair labor practice, to petition any district court of the United States ... within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper. 29 U.S.C. § 160(j).

The district courts are given the power to grant this relief because Congress recognized that:

by reason of lengthy hearings and litigation enforcing its orders, the Board has not been able in some instances to correct unfair labor practices until after substantial injury has been done.... Since the Board's orders are not self enforcing, it has sometimes been possible for persons violating the [NLRA] to accomplish their unlawful objective before being placed under any legal restraint and thereby making it impossible or not feasible to restore or preserve the status quo pending litigation.

S.Rep. No. 105, 80th Cong., 1st Sess. 8, 27 (1947).

The parties disagree about the appropriate analysis under which the determination of whether this injunction should issue must be made. The Circuits are split on this issue as well. In the pleadings, and at the hearing before this Court, Petitioner argued that the appropriate standard is a two-prong test which was discussed by the Fourth Circuit in Humphrey v. International Longshoremen's Assn., 548 F.2d 494 (4th Cir.1977). Under this test, the Board must first demonstrate that it has "reasonable cause" to believe that an unfair labor practice has been committed. Then, the Board must establish that interim relief is "just and proper." See id. 548 F.2d at 497-98; see also D'Amico v. Cox Creek Refining Co., 719 F.Supp. 403, 406-07 (D.Md.1989); D'Amico v. A.G. Boone Co., 647 F.Supp. 1546, 1549 (W.D.Va.1986). The "reasonable cause" standard does not require the court to resolve the case on its merits. International Longshoremen's Assn., 548 F.2d at 497. Instead, the standard requires the Court to determine whether the factual issues could be decided in the favor of the Petitioner. Id. 548 F.2d at 498. This standard does not measure the likelihood of success on the merits, but rather if there is any evidence "which together with all the reasonable inferences that might be drawn therefrom supports a conclusion that there is reasonable cause to believe violation has occurred." Squillacote v. Graphic Arts International Union, 540 F.2d 853, 858 (7th Cir.1976) (citations omitted).

Under the traditional reading of the "just and proper" standard, Petitioner does not have to show irreparable harm, but only that injunctive relief would restore the pre-violation status quo, serve the public interest, and further the remedial purposes of the act. See NLRB v. Aerovox Corp., 389 F.2d 475, 477 (4th Cir.1967) (applying Section 10(e) of the NLRA which contains the same "just and proper language") ("[T]he government is not required to show irreparable injury when it seeks an injunction to give effect to an act of Congress.").

Respondent argues that the appropriate standard to apply in this case is the traditional equitable four prong test, not the two prong test. Under the traditional equitable principles, a preliminary injunction is an extraordinary remedy that only should be issued when the Plaintiff (here Petitioner) clearly establishes its entitlement to such relief. See Manning v. Hunt, 119 F.3d 254, 263 (4th Cir.1997). The standards for injunctive relief in the Fourth Circuit are well known. In Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Mfg. Co., Inc., 550 F.2d 189 (4th Cir.1977), the Fourth Circuit explained that the most important factors a district court must consider in deciding whether to grant injunctive relief are the threat of irreparable harm to the plaintiff should the Court not issue an injunction, and the likely harm to the defendant (here Respondent) if an injunction is ordered. See id. 550 F.2d at 196. The district court must balance these two factors. See Manning, 119 F.3d at 263. After doing this balancing, the court may consider the third factor, which is the plaintiff's likelihood of success on the merits. See id. As the balance of harm moves in favor of the defendant, the plaintiff has a greater burden in showing its likelihood of success. See id. Finally, the Court considers the fourth factor, the public interest. See id.

In addition to arguing that the traditional four prong standard should be applied, R...