Hooks ex rel. Nat'l Labor Relations Bd. v. Hood River Distillers, Inc.
| Decision Date | 26 May 2021 |
| Docket Number | Case No. 3:21-cv-268-SI |
| Parties | RONALD K. HOOKS, Regional Director of the Nineteenth Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOOD RIVER DISTILLERS, INC., Respondent. |
| Court | U.S. District Court — District of Oregon |
Anne Pomerantz, Irene Hartzell Botero, Sarah Ingebritsen, and Paul A. Thomas, NATIONAL LABOR RELATIONS BOARD, Region 19, 915 Second Avenue, Room 2948, Seattle, WA 98174. Of Attorneys for Petitioner.
Dennis E. Westlind, BULLARD LAW, 200 SW Market Street, Suite 1900, Portland, OR 97201; and Kristin Bremer Moore, TONKON TORP LLP, 888 SW 5th Avenue., Suite 1600, Portland, OR 97204. Of Attorneys for Respondent.
Noah T. Barish, MCKANNA BISHOP JOFFE, LLP, 1635 NW Johnson Street, Portland, OR 97209. Of Attorneys for Amicus Curiae Teamster Food Processors, Chauffeurs, Warehousemen, and Helpers, Local Union No. 670.
Noelle E. Dwarzski, BARLOW COUGHRAN MORALES & JOSEPHSON, P.S., 1325 Fourth Avenue, Suite 910, Seattle, WA 98101. Of Attorneys for Amicus Curiae Board of Trustees of the Oregon Processors Employees Trust Fund.
Petitioner Ronald K. Hooks (Petitioner), Regional Director for Region 19 of the National Labor Relations Board (NLRB or Board), filed a verified Petition and Amended Petition for and on behalf of the Board. Petitioner requests preliminary injunctive relief against Hood River Distillers, Inc. (HRD or Respondent) under Section 10(j) of the National Labor Relations Act (NLRA).1 Petitioner sought an interim order pending the final disposition of the matters involved herein pending before the Board. The Court held a Show Cause and Evidentiary Hearing on April 2, 2021. Counsel for Petitioner, counsel for Respondent Hood River Distillers, Inc. (HRD or Respondent), and counsel for amicus Teamster Food Processors, Chauffeurs, Warehousemen, and Helpers, Local Union No. 670 (Union) presented argument. Counsel for amicus Board of Trustees of the Oregon Processors Employees Trust Fund (Trust Fund) relied on the Trust Fund's submitted brief. The Court considered the Amended Petition, evidence, and arguments of counsel, and issued an Opinion and Order on May 7, 2020, granting Petitioner's Amended Petition (ECF 53).
Respondent filed a motion to stay or amend the Court's injunction (ECF 56). The Court has considered Respondent's motion, Petitioner and the Union's briefs filed in response, and Respondent's reply. For the reasons discussed below, the Court denies Respondent's motion to stay. The Court grants Respondent's motion to amend in part, and issues this Amended Opinion and Order granting the Amended Petition. The Amended Order Granting Interim Injunctive Relief is filed concurrently herewith.
Petitioner is the Regional Director of Region 19 of the Board, an agency of the United States Government, and files this Petition for and on behalf of the Board. HRD is an importer, distiller, producer, bottler, and marketer of distilled spirits. It is located in Hood River, Oregon. HRD has approximately 75 employees.
The Union is the designated exclusive collective-bargaining representative of HRD's 25 or so manufacturing and production employees (the Unit), who are all of HRD's employees except office and clerical employees, casual employees hired for no more than thirty calendar days, and supervisors as defined in the NLRA. The Union has represented this Unit of employees since around 1960. The Trust Fund is a joint labor management trust fund established under the NLRA and governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001, et seq. The Trust Fund provided health and welfare benefits to HRD's employees performing work covered by HRD's bargaining agreement with the Union, through the Oregon Processor Employers Trust (OPET), until HRD moved employees to its own insurance plan on May 1, 2020.
Between May 6, 2020 and October 29, 2020, the Union filed three charges with Region 19 against Respondent in Cases 19-CA-260013, 19-CA-265595, and 19-CA-268290, alleging violations of §§ 8(a)(1), (3), and (5) of the NLRA.2 On August 4, 2020, the Trust Fund filed a charge with the Region against Respondent in Case 19-CA-264083 alleging a violation of §§ 8(a)(1) and (5) of the NLRA. The charges filed by the Union and the Trust Fund were referred to Petitioner as Regional Director of Region 19.
Petitioner conducted a field investigation, during which all parties had an opportunity to submit evidence. Petitioner determined that there was reasonable cause to believe that Respondent engaged in unfair labor practices in violation of §§ 8(a)(1), (3), and (5) of the NLRA as alleged in the charges filed by the Union and the Trust. On December 1, 2020, Petitioner issued an Order Consolidating Cases, Consolidated Complaint and Notice of Hearing in Cases19-CA-260013, 19-CA-265595 and 19-CA-264083 (Consolidated Complaint), alleging that Respondent had engaged in unfair labor practices under §§ 8(a)(1), (3), and (5) of the NLRA. On December 15, 2020, Respondent filed an Answer denying the material allegations of the Consolidated Complaint.
On February 4, 2021, Petitioner issued an Order Further Consolidating Cases, Second Amended Consolidated Complaint and Notice of Hearing in Cases 19-CA-260013, 19-CA-265595, 19-CA-267920,3 19-CA-268290, and 19-CA-264083 (Second Consolidated Complaint), alleging that Respondent had engaged in further unfair labor practices under §§ 8(a)(1), (3), and (5) of the NLRA. On February 16, 2021, Respondent filed an Answer denying the material allegations of the Second Consolidated Complaint.
On February 24, 2021, Petitioner issued an Amendment to the Second Consolidated Complaint in Cases 19-CA-260013, 19-CA-265595, 19-CA-267920, 19-CA-268290, and 19-CA-264083 (Amendment). On March 2, 2021, Respondent filed an Answer denying the material allegations of the Amendment.
An administrative hearing on the allegations of the Second Consolidated Complaint, as amended, is scheduled to be held before an Administrative Law Judge (ALJ) of the Board beginning on May 25, 2021. The ALJ's decision, however, will not be final. See 29 C.F.R. § 102.45. Only the Board, after either adopting or rejecting the ALJ's decision, can provide relief. 29 C.F.R. § 102.48. Further, either party aggrieved by the Board's final order can obtain review of the order before the Ninth Circuit. 29 U.S.C. § 160(f). During this process to reach the Board's decision, to preserve the lawful status quo that existed before an employer's unfair labor practices, Congress accorded the Board authority to seek a temporary injunction pursuant to§ 10(j). See 29 U.S.C. § 160(j)4; see also Frankl v. HTH Corp. (Frankl I), 650 F.3d 1334, 1342 (9th Cir. 2011) ().
The Court issued its Opinion and Order granting the Amended Petition on May 7, 2021. ECF 53. HRD filed its motion to stay or amend the Court's injunction on May 11, 2021. The parties completed briefing on that motion on May 24, 2021.
HRD and the Union have been parties to a series of Collective Bargaining Agreements (CBAs), the most recent of which expired on February 28, 2019. The parties engaged in bargaining a new CBA from February 27, 2019, through April 23, 2020, when HRD declared that the parties had reached an impasse. Bargaining on behalf of HRD was HRD's Human Resources Manager Janene Sumerfield (Sumerfield); HRD's Vice President of Operations Donna Gaudreault (Gaudreault); HRD's Chief Financial Officer was Erica Mitchell (Mitchell); and HRD's outside labor counsel Kristin Bremer Moore (Bremer Moore) of Tonkon Torp, LLP. Bargaining on behalf the Union was Michael Beranbaum (Beranbaum), the Union's Secretaryand Treasurer; Larry Kale (Kale), the Union Business Agent until August 2019; and Marcus Williams (Williams), the Union Business Agent from August 2019 until August 2020.
The parties engaged in six bargaining sessions between February 27, 2019 and March 30, 2020, and exchanged information and communications between sessions. HRD informed the Union that HRD needed to lower its costs, and thus that the most important issues for HRD in the bargaining process were lowering wages and moving the Unit to HRD's insurance plan and away from the OPET.
In March 2019, Kale repeatedly requested information from HRD about its then-existing CIGNA health insurance plan to have the Union's third-party administrator perform a plan comparison so the Union could evaluate the economic impact of changing insurance plans. HRD provided the last of the requested information on April 2, 2019.
Sumerfield repeatedly contacted Kale about scheduling additional bargaining sessions. Kale regularly responded that he was working on scheduling dates. For example, on March 21, 2019, Kale sent a letter that stated he was working on finding dates; on April 8, 2019, he sent an email that he was working on dates; and on May 1, 2019, he proposed several dates in June. The parties eventually scheduled sessions for June 24 and 25, 2019. At the June 24 and 25, 2019 bargaining sessions, the Union made a "what-if" proposal that included employees remaining in the OPET insurance but with various other Union concessions including a wage freeze for the life of the contract and other insurance and pay concessions. Sumerfield, Bremer Moore, and Gaudreault were present on behalf of HRD. Sumerfield stated that many, but not all, of HRD's Board of Directors had been contacted about the proposal and that HRD accepted the Union's proposal, pending approval by its Board of Directors. The parties ended the bargaining sessions and did not set any further bargaining, believing they had reached an agreement. The Unionnotified HRD that the Union...
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