Gottfried v. Purity Systems, Inc.

• Decision Date: 28 October 1988
• Docket Number: No. G 88-726 CA7.,G 88-726 CA7.
• Citation: 707 F. Supp. 296
• Parties: Bernard GOTTFRIED, Regional Director of the Seventh Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PURITY SYSTEMS, INC., Respondent.
• Court: U.S. District Court — Western District of Michigan

707 F. Supp. 296

Bernard GOTTFRIED, Regional Director of the Seventh Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PURITY SYSTEMS, INC., Respondent.

No. G 88-726 CA7.

United States District Court, W.D. Michigan, S.D.

October 28, 1988.

COPYRIGHT MATERIAL OMITTED

OPINION

ENSLEN, District Judge.

I. Background

This proceeding is before the Court on a petition for a preliminary injunction filed by the Regional Director of Region Seven of the National Labor Relations Board ("Board"). Section 10(j) of the National Labor Relations Act ("Act") authorizes the United States District Court to issue a preliminary injunction pending disposition of an unfair labor practice charge by the Board. 29 U.S.C. § 160(j) (1983).

The unfair labor charge which is the subject of the instant petition was filed on July 21, 1988 and was amended on August 4, 1988 by the United Steelworkers of America, AFL-CIO-CLC ("Charging Party"). The charge alleges that the respondent, Purity Systems, Inc., has violated Sections 8(a)(1) and (3) of the Act by, among other things, threatening employees with plant closure if they unionized and by discharging three employees, half its production force, because of their union activities.

An unfair labor practice complaint has been issued and a hearing is scheduled before an administrative law judge on November 14, 1988.

The Court has before it affidavits and other documents to supplement the evidence heard at the hearings of October 20 and 26, 1988.

II. Law

Section 10(j) of the Act provides that after a complaint has been issued by the Board alleging violations of the Act, the Board may seek preliminary injunctive relief in the appropriate United States District Court in order to prevent a respondent from engaging in any conduct which would completely frustrate the purpose and policies under the Act and from accomplishing an illegal objective before being placed under future legal restraint. 29 U.S.C. § 160(j) (1983). See generally Sheeran v. American Commercial Lines, Inc., 683 F.2d 970 (6th Cir.1982); Levine v. C & W Mining Co., 610 F.2d 432 (6th Cir.1979).

While the board has been empowered by Congress to issue complaints, conduct hearings, and ultimately decide whether an unfair labor practice has occurred, a decision and order of the Board is not self-enforcing and no sanctions attach unless the Board's order is enforced after review of a Court of Appeals.

Congress sought to remedy the situation where unfair labor practices are unchecked for long periods of time by adding § 10(j) to the Act in 1947. The district court is therefore empowered to grant interim injunctive relief pending final disposition of any unfair labor practices by the Board. Such relief is appropriate under the Act where the Court finds reasonable cause to believe that the Act has been violated and that the relief sought is just and proper.

It is well-settled that the ultimate determination of whether the Act has been violated is reserved exclusively to the Board, subject to review by the Court of Appeals. As the Sixth Circuit recently clarified, to issue a temporary injunction, a district court must make two findings. First, the court must find there is "reasonable cause" to believe that unfair labor practices have occurred. (This is a finding of fact that may only be set aside if clearly erroneous). Gottfried v. Frankel, 818 F.2d 485, 493 (6th Cir.1987). To establish reasonable cause does not require the evidence needed for enforcement of a Board order after a full hearing on the merits, indeed, the Sixth Circuit noted that the burden on the Regional Director in a 10(j) proceeding is "relatively insubstantial." Gottfried v. Frankel, 818 F.2d at 493. See also Levine v. C & W Mining Co., 610 F.2d at 435. A district court must only produce "some evidence" in support of the petition. Gottfried v. Frankel, 818 F.2d at 493.

Moreover, the district court is not required to resolve disputed issues of facts or credibility in a 10(j) proceeding; the court's function is limited to a determination of whether such issues could ultimately be resolved by the Board in favor of the petitioner. Levine v. C & W Mining Co., 610 F.2d at 435.

Petitioner's legal propositions "need only demonstrate ... that the legal theory upon which he proceeds is `substantial and not frivolous.'" Hirsch v. Building & Construction Trades Council, 530 F.2d 298, 302 (3rd Cir.1976). See also Gottfried v. Frankel, 818 F.2d at 493; Kennedy v. Los Angeles Typographical Union, 418 F.2d 6, 8 (9th Cir.1969); Boire v. International Brotherhood of Teamsters, 479 F.2d 778, 789-92 (5th Cir.1973).

Second, the court must find that the requested relief is "just and proper." Gottfried v. Frankel, 818 F.2d at 494; Sheeran v. American Commercial Lines, Inc., 683 F.2d at 978; Levine v. C & W Mining Co., 610 F.2d at 435. The granting of injunctive relief under this just and proper standard "is a matter committed to judicial discretion." Gottfried v. Frankel, 818 F.2d at 494. The district court making this determination should bear in mind that "section 10(j) was added to give the Board a means of preserving the status quo pending the completion of its regular procedures.... By the same token, the relief to be granted is only that reasonably necessary to preserve the ultimate remedial power of the Board and is not to be a substitute for the exercise of that power." Id. at 495.

Finally, where necessary, the district court may grant injunctive relief without a full evidentiary hearing. See, e.g., id. at 493 (reasonable cause finding was proper based on evidence from NLRB transcript, affidavits, and documents).

III. Analysis

To determine whether the petitioners are entitled to injunctive relief, I must first decide whether there is reasonable cause to believe that respondent violated Section 8(a)(1) and (3) of the Act. To begin with, section 8(a)(1) prohibits employers from threatening employees with reprisals because of the employee's support for a union. See, e.g., Justak Bros. v. NLRB, 664 F.2d 1074, 1082 (7th Cir.1981).

There is reasonable cause to believe that Purity Systems, Inc. ("Employer") made threats of reprisals as a result of its employees' support for the union in violation of 8(a)(1) of the Act. One employee received a direct threat on July 14, 1988 from the company's president, John Mrozinski: "I would move our whole plant to Bay City in twelve hours if we got a union in at Purity." Rex Conklin Affidavit, at 3. In such a small plant, it is not unreasonable to believe that such an inflammatory remark might be the subject of discussion among other employees as well.

Also there is reasonable cause to believe that the immediate firing of three out of four employees who had signed union authorization cards precipitated a less direct, but still potent and lingering threat to the remaining employees.

Terminating employees because of their known or suspected activities supporting a union also violates Sections 8(a)(1) and (3) of the Act. NLRB v. Health Care Logistics, Inc., 784 F.2d 232 (6th Cir. 1986); NLRB v. Clinton Packing Co., 468 F.2d 953 (8th Cir.1972); NLRB v. Ritchie Mfg. Co., 354 F.2d 90 (8th Cir.1968); NLRB v. American Casting Service, Inc., 365 F.2d 168 (7th Cir.1966). When deciding whether this violation of 8(a)(1) and (3) has occurred, a court may take into account circumstantial evidence and all relevant facts about an employer's knowledge of the employee's union activities. NLRB v. Health Care Logistics, Inc., 784 F.2d at 236.

There is reasonable cause to find that the employer here terminated three employees due to the employer's knowledge or suspicion of the employees' activities supporting the union. This type of termination violates Sections 8(a)(1) and (3) of the Act. On July 7, 1988, Alan Conklin, Tim Jerome, and Richard Briske were suddenly fired within hours of signing their union authorization cards. Alan Conklin Affidavit, at 5; Tim Jerome Affidavit, at 3; Richard Briske Affidavit at 2. The sudden nature of the firing and the employees chosen to be fired provide circumstantial evidence that those affiliated with the union were terminated for that reason. There is also direct and circumstantial evidence of the employer's knowledge and distaste for the employee's union activity. See infra at 301-302 (discussion of antiunion animus).

Discharging employees in retaliation for their concerted protests and demands about their working conditions also violates section 8(a)(1) of the Act. See, e.g., Vic Tanny Int'l Hotel v. NLRB, 622 F.2d 237, 241 (6th Cir.1980); NLRB v. Leslie Metal Arts Co., 509 F.2d 811, 813 (6th Cir.1975). Where an employer can show probative evidence indicating misconduct on the part of the employee, for example, a deliberate slow down, the evidence may support a defense to the 8(a)(1) charge. See Silverman v. Imperia Foods, Inc., 646 F.Supp. 393, 399-400 (S.D.N.Y.1986). Evidence that an employer failed to negotiate with the union, communicated no misconduct in employees' letters of termination, and took no disciplinary actions in response to the misconduct could support a finding that the alleged misconduct did not cause the termination. Id.

Here the Court finds adequate evidence to support the conclusion that the three discharged employees were fired in retaliation for their concerted protests and attempts to better undesirable working conditions. Alan Conklin, Tim Jerome, and Richard Briske were dissatisfied with various aspects of their employment, including the pay rate, the lack of insurance, and the excess heat at times in the production area. This dissatisfaction was communicated openly to management. Alan Conklin Affidavit, at 3; Tim Jerome Affidavit, at 2-4; Richard Briske Affidavit, at 1; Alan Conklin Supplemental Affidavit, at 1-9; Alan Edens Supplemental Affidavit, at 2; Joseph Mauer Supplemental Affidavit, at 3-4.

Though in defense the...