Diaz ex rel. Nat'l Labor Relations Bd. v. Prof'l Transp., Inc.

• Decision Date: 29 January 2014
• Docket Number: Case No. 3:13–cv–1447–J–34JRK.
• Parties: Margaret J. DIAZ, Regional Director of the Twelfth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. PROFESSIONAL TRANSPORTATION, INC., Respondent.
• Court: U.S. District Court — Middle District of Florida

996 F.Supp.2d 1215

Margaret J. DIAZ, Regional Director of the Twelfth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner,

v.PROFESSIONAL TRANSPORTATION, INC., Respondent.

Case No. 3:13–cv–1447–J–34JRK.

United States District Court,

M.D. Florida,

Jacksonville Division.

Jan. 29, 2014.

Christopher C. Zerby, Thomas W. Brudney, Mark Eskenazi, National Labor Relations Board, Tampa, FL, for Petitioner.

James H. Post, James Arthur Bolling, Smith, Hulsey & Busey, Jacksonville, FL, Jon Goldman, Joshua B. Gessling, Kahn, Dees, Donovan & Kahn, LLP, Evansville, IN, for Respondent.

ORDER

MARCIA MORALES HOWARD, District Judge.

THIS CAUSE is before the Court on the Petition for Preliminary Injunction Under Section 10(j) of the National Labor Relations Act (Doc. 1; Petition), filed by Petitioner Margaret J. Diaz (“Regional Director”), Regional Director of the Twelfth Region of the National Labor Relations Board (“Board” or “NLRB”) on November 25, 2013. The Regional Director seeks a preliminary injunction under § 10(j) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(j) (“NLRA”). See Petition at 1. In support of the Petition, the Regional Director filed Petitioner's Memorandum of Points and Authorities in Support of Petition for Injunctive Relief Pursuant to Section 10(j) of the National Labor Relations Act (Doc. 3; Regional Director Memo) on November 25, 2013. Also in support of the Petition, the Regional Director provided the transcript of an administrative hearing held before Associate Chief Administrative Law Judge William Case in Board Case 12–CA–101034 (Docs. 1–3, 1–4; Petitioner's Exhibit 1; ALJ Tr.); a composite exhibit comprised of the exhibits entered in evidence during the administrative hearing, marked as General Counsel Exhibit 1(a) through General Counsel Exhibit 18 (Docs. 1–5, 1–6; Petitioner's Exhibit 2; GC Ex. 1(a)18); and the October 22, 2013, Decision of the NLRB Administrative Law Judge in the NLRB Case 12–CA–101034, JD (ATL)–27–13 (Doc. 1–7; Petitioner's Exhibit 3; ALJ Decision).

On December 5, 2013, the Court held a Telephonic Status Conference to determine whether the parties intended to proceed with an evidentiary hearing or whether the Court should rely solely on the written evidentiary submissions. At the hearing, the Regional Director and Respondent Professional Transportation, Inc. (“PTI” or the “Company”) disagreed over the necessity of an evidentiary hearing. As a result, the Court requested briefing on the issue (Doc. 10; December 5, 2013 Order). On December 17, 2013, the Regional Director filed Petitioner Diaz's Memorandum in Support of the Court Ruling on the Petition Without Holding an Evidentiary Hearing (Doc. 16; Regional Director Hearing Memo), asserting that the Court should rule on the Petition based solely on the written evidentiary submissions. See generally Regional Director Hearing Memo. The Regional Director further advised the Court that PTI had determined that it would not submit an argument that live testimony should be heard by the Court. Regional Director Hearing Memo at 1 n. 1. Consistent with this representation, PTI filed no briefing on the issue.

Although opting not to present live evidence, PTI opposes the Regional Director's Petition, and filed Professional Transportation's Memorandum in Opposition to the Regional Director's Petition for Preliminary Injunction (Doc. 18; PTI Memo) on December 17, 2013. In response, the Regional Director filed Petitioner Diaz's Reply to Respondent's Memorandum (Doc. 19; Regional Director Reply). On January 7, 2014, the undersigned held a hearing on the Petition (Hearing Tr.). See December 5, 2013 Order; Clerk's Minutes (Doc. 21). Having reviewed the written evidentiary submissions of the parties and considered the arguments of counsel, the Petition is ripe for resolution.

I. Background

This action arises from an unfair labor practice charge filed by the International Brotherhood of Teamsters, Local 512 (“Union”), on March 25, 2013. In the unfair labor practice charge, the Union alleged that PTI “engaged in bad faith bargaining by cancelling scheduled negotiations for a first time contract with [the Union]” in violation of §§ 8(a)(1) and (5) of the NLRA, 29 U.S.C. § 158(a)(1) and (5). GC Ex. 1(a). Upon consideration of the allegations, the Regional Director issued a complaint on May 31, 2013, and an amended complaint on July 25, 2013.¹ GC Exs. 1(d), 1(I). PTI filed answers, to both the original and the amended complaint, denying that it committed any unfair labor practices. GC Exs. 1(h), 1(k). The parties appeared for an administrative hearing before NLRB Administrative Law Judge William Nelson Cates (“the ALJ”) on August 8, 2013. See generally ALJ Tr. On October 22, 2013, Judge Cates issued a decision in which he found that PTI violated the NLRA as alleged,² and ordered PTI to bargain in good faith at reasonable times and places with the Union. See generally ALJ Decision. Arguing that a substantial amount of time may pass before the Board issues a final order in the NLRB administrative proceedings, the Regional Director now seeks interim injunctive relief from this Court pursuant to § 10(j) of the NLRA. See Regional Director Memo at 3–4.

In the Petition before the Court, the Regional Director seeks an order enjoining PTI from: (1) failing and refusing to meet at reasonable times and places and failing to bargain in good faith with the Union as the exclusive collective-bargaining representative of the Unit; (2) failing and refusing to bargain collectively in good faith with the Union for an initial agreement by cancelling meetings previously scheduled with the Union; (3) conditioning bargaining with the Union on its agreement that if a court of competent jurisdiction determines that the Board lacked a proper quorum at the time the Union was certified as the collective-bargaining representative of the Unit, any collective-bargaining agreement that has been reached will be null and void and recognition of the Union will be considered withdrawn, or on the Union's agreement to any other improper condition for bargaining; and (4) in any like or related manner interfering with, restraining or coercing employees in the exercise of rights guaranteed in § 7 of the NLRA. See Petition at 8–9. The Regional Director also requests that the injunction require PTI to: (1) on request, meet and bargain in good faith with the Union as the exclusive collective-bargaining representative of PTI's Unit employees not less than 24 hours per month, at least 6 hours per session, or on another schedule to which PTI and the Union have mutually agreed, with respect to wages, hours of work, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement; (2) post the District Court's order, and maintain the posting during the Board's administrative proceedings, free from all obstructions and defacements, and grant agents of the Board reasonable access to PTI's facility to monitor compliance with the posting requirement, and mail the District Court's order to Unit employees at their home addresses; and (3) within twenty (20) days of issuance of the District Court's order, file with the District Court and submit a copy to the Regional Director of the Twelfth Region of the Board, a sworn affidavit from a responsible official of PTI setting forth with specificity the manner in which Respondent has complied with the terms of the order, including how and where it posted the documents required by the order. See id. at 9–10.

A. Certification of the Union

PTI provides crew transportation services to railroad industry companies in Florida, Georgia, and throughout the United States. ALJ Decision at 2. In the spring of 2012, the Union filed a petition with the Board's Tampa, Florida Regional Office seeking to represent a unit of PTI's drivers (the “Unit”), defined as follows:

All full time and regular part-time over the road and local drivers working from the Respondent's Jacksonville, Florida facility; excluding: all other employees guards and supervisors as defined in the Act.

ALJ Decision at 2–3 (alteration omitted); ALJ Tr. at 30. The parties entered into a Stipulated Election Agreement on April 20, 2012, which Diaz, then Acting Regional Director, approved. ALJ Decision at 2; GC Ex. 3. PTI asserts, upon information and belief, that Diaz was appointed Regional Director in May 2012. PTI Memo at 9. Eligible Unit employees participated in a representation election on May 16 and 17, 2012, and a majority of employees voted in favor (a vote of 44 to 23) of selecting the Union to represent them for the purposes of collective-bargaining. ALJ Decision at 2–3; GC Ex. 2. On June 5, 2012, Diaz certified the Union as the exclusive collective-bargaining representative of the Unit. ALJ Decision at 3; GC Ex. 4.

B. Negotiations between the Union and PTI

On June 5, 2012, Union President and Business Manager, Jim Shurling, contacted PTI Vice–President Steve McClellan, requesting that PTI provide dates to begin negotiations for an initial collective-bargaining agreement. ALJ Decision at 3; ALJ Tr. 31–32; GC Ex. 5. PTI's counsel Ronald Pfeifer emailed Shurling on June 12, 2012, stating that he would be assisting PTI in negotiations, and PTI Vice–President Bob Tevault would be the Union's point of contact. ALJ Decision at 3; GC Ex. 6. Shurling emailed Tevault on June 19, 2012, requesting dates in July or August for possible meetings. GC Ex. 7. On July 3, 2012, Pfeifer contacted Shurling to advise that Tevault had an usually busy July, and asked Shurling to provide August dates for negotiations. ALJ Decision at 3; GC Ex. 8. Shurling responded that same day suggesting August 16, 17, 30, and 31, 2012. GC Ex. 9. Tevault was unavailable on those dates. Regional Director Memo at 6. PTI and the Union eventually met for their first bargaining session on...