Goonan v. Amerinox Processing, Inc.
| Decision Date | 14 July 2021 |
| Docket Number | 1:21-cv-11773-NLH-KMW |
| Parties | THOMAS A. GOONAN, Regional Director of the Fourth Region of the NATIONAL LABOR RELATIONS BOARD, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERINOX PROCESSING, INC., Amerinox. UNITED STATES OF AMERICA, Intervenor. |
| Court | U.S. District Court — District of New Jersey |
Lea F Alvo-Sadiky, Alvina Swati On behalf of Petitioner.
Daniel V. Johns, Kelly T. Kindig, Cozen O'Connor On behalf of Respondent.
Christopher D. Dodge, Zachary A. Avallone, Trial Attorneys On behalf of the United States.
Presently before the Court is the petition of Thomas A. Goonan Regional Director of the Fourth Region of the National Labor Relations Board (“Board”), brought pursuant to Section 10(j) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(j), [1] for injunctive relief pending the final disposition of the matters pending before the Board on charges against Amerinox Processing, Inc. The Board contends that Amerinox has engaged in, and is currently engaging in, conduct in violation of Section 8(a)(1) and (3) of the Act regarding interference with union activities.
The United States has intervened in this action because of a discrete issue raised by Amerinox in its opposition to the Board's petition. The Court held argument on June 25 2021, and permitted supplemental briefing.
For the reasons expressed at the June 25, 2021 hearing, and for the reasons set forth below, the Court will grant the Board's petition.
BACKGROUND[2]
Amerinox is a New Jersey corporation that maintains a facility in Camden, New Jersey, where it processes stainless steel and aluminum by cutting and polishing coils for customers based on particular specifications. In April 2018, Amerinox's employees began an organizing campaign seeking representation by the International Association of Sheet Metal, Air, Rail & Transportation Workers, Sheet Metal Workers Local 19 (“Union”). At that time, the Board contended that Amerinox coerced employees, discharged union supporters, made unlawful statements, and successfully quashed support for the Union. The Board further contended that Amerinox's actions interfered with employee free choice in the union representation petition and the Board set aside the election results. Amerinox's conduct led to a series of administrative complaints and settlement agreements. The last of these was a Formal Settlement approved by the Board on February 4, 2020.
The Third Circuit enforced the Formal Settlement on April 23, 2020 (Circuit No. 20-1503). As part of the Formal Settlement, the election conducted in Case 04-RC-223800 was set aside and provisions were made for a re-run election. Prior to the scheduling of that election, on May 4, 2020, the Union requested to withdraw its election petition. The Board contends that it was partly because of the COVID-19 pandemic and partly because the Union believed that employees would be unwilling to vote for the Union at that time due to Amerinox's prior actions. The Board approved the withdrawal.
The Board represents that in October 2020, the Union resumed its campaign to organize employees. Eight employees signed Union authorization cards as of October 19, 2020.[3] The Board contends that on that same date, Amerinox forcefully responded to the effort by discharging two main Union adherents - Kyle George and Miguel Gonzalez - and laying off four employees - Andrew Rodriguez, Keon Smith, Joseph Soto, and Bernard Venable. Five of the six employees who were terminated had signed Union cards (Venable had not).
The Board claims that these terminations violated the National Labor Relations Act, specifically: Section 7, which guarantees employees the right to form, join, or assist labor organizations and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, 29 U.S.C. § 157; Section 8(a)(1), which makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of that right, ” 29 U.S.C. § 158(a)(1); and Section 8(a)(3), which provides that an employer may not discriminate “in regard to hire or tenure or any term or condition of employment to encourage or discourage membership in a labor organization, ” 29 U.S.C. § 158(a)(3).
Based on these alleged violations of the Act, the Union filed four charges (two on October 30, 2020, another on February 1, 2021, and the fourth on April 8, 2021), which were consolidated for consideration by an Administrative Law Judge of the NLRB. A hearing was held on May 5, 2021. The decision of the ALJ was issued on July 8, 2021.[4]
On May 26, 2021, the Board filed its instant petition. The Board seeks an injunction pursuant to § 160(j) of the Act, which is typically referred to as a Section 10(j) petition, [5] which authorizes the Board, “upon issuance of a complaint . . . charging that any person has engaged in or is engaging in an unfair labor practice, ” to seek temporary injunctive relief from the United States District Court for the District “wherein the unfair labor practice in question is alleged to have occurred.” Specifically, the Board seeks an order from this Court enjoining Amerinox from the following pending final disposition of the NLRB charges: (a) Discharging, laying off, or otherwise discriminating against employees because of employees' support for the Union; (b) Informing employees that it will retaliate against employees because of their support for the Union; (c) Prohibiting employees from discussing a union during working time while permitting them to discuss other subjects unrelated to work; and (d) In any other manner, interfering with, restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act.
The Board also seeks as part of its requested injunctive relief that this Court direct Amerinox to offer immediate reinstatement to Miguel Gonzalez, Andrew Rodriguez, Keon Smith, Joseph Soto, and Bernard Venable to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges they previously enjoyed.[6]
The Board claims that an injunction is necessary because by the time the Board litigation process concludes, and a remedy is imposed, it will be many months or even years later, and too late to revive the Union organizing drive, which Amerinox will have managed to destroy with its unlawful conduct, and the effects of which will be permanent unless temporary injunctive relief is granted to safeguard the Board's remedial powers. Petitioner further claims that after the mass discharge/layoff on October 19, 2020, the Union was only able to garner one additional digital union authorization card on November 2, 2020, and none thereafter through February 2021. Following the terminations of the six employees, the Union was unable to get employees to talk to them while at Amerinox's facility. Recently, as the hearing date on the underlying unfair-labor-practice charges approached, the Board contends that a few employees have been willing to speak to the Union but they have been unwilling to be seen talking to the Union.
Amerinox, not surprisingly, tells a different story. Amerinox sets forth what it contends are the legitimate business reasons for the termination of these six employees. For Kyle George, Amerinox relates that not only did George misprocess a significant customer order in October 2020 causing Amerinox almost a quarter of a million dollars to settle the matter with its customer, George gave his two-weeks' notice to Amerinox on October 19, 2020 that he was leaving his employment for another position with a different employer. As for Miguel Gonzalez, Amerinox relates that on October 15, 2020, Gonzalez got into an altercation with a co-worker. Seth Young, Amerinox's president and owner, determined that Gonzalez should be terminated for violating Amerinox's workplace violence policy, and that when he made the decision to terminate Gonzalez, he was unaware of any of Gonzalez's alleged union activities.
Amerinox relates that the other four employees - Andrew Rodriguez, Keon Smith, Joseph Soto, and Bernard Venable - were laid off due to the impact of COVID-19. Amerinox states that between March and October 2020, Amerinox lost approximately $1 million, and that October 2020 was especially “horrific” financially. Amerinox determined that it needed to further reduce employee headcount, and it prepared an internal memo which identified seven employees considered for layoff, and the reasons each was considered for layoff. Amerinox contends that when Young decided to conduct the layoffs on October 19, 2020, he “had zero knowledge of any text or cards or that there was anything going on” with the Union.
In its overriding argument against the Board's request for an injunction, Amerinox contends that even putting aside the circumstances of the six employees' terminations, the Union has not presented evidence to show that the unionizing activities have been suppressed, which is the critical determination as to whether a Section 10(j) injunction should be imposed. With regard to the Union's alleged unsuccessful efforts to engage Amerinox's workers, Amerinox points out that in 2018, the Union attempted to organize Amerinox's employees, led by the Union's area marketing representative, Robert Gadsby. A secret ballot election was held near the end of 2018, and the Union lost. Amerinox further points out that there is no evidence that the Union did anything to attempt to organize Amerinox's employees between April/May 2020 through October 2020.
Amerinox points out that Gadsby testified that even though...
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