McKinney v. Ozburn-Hessey Logistics, LLC

• Decision Date: 09 November 2017
• Docket Number: No. 15-5211,15-5211
• Citation: 875 F.3d 333
• Parties: M. Kathleen MCKINNEY, Regional Director of the Fifteenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellee, v. OZBURN-HESSEY LOGISTICS, LLC, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

875 F.3d 333

M. Kathleen MCKINNEY, Regional Director of the Fifteenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellee,

v.OZBURN-HESSEY LOGISTICS, LLC, Respondent-Appellant.

No. 15-5211

United States Court of Appeals, Sixth Circuit.

Argued: October 12, 2017

Decided and Filed: November 9, 2017

ARGUED: Ben H. Bodzy, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC, Nashville, Tennessee, for Appellant. Laura T. Vazquez, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Appellee. ON BRIEF: Ben H. Bodzy, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC, Nashville, Tennessee, for Appellant. Laura T. Vazquez, Elinor L. Merberg, Jessica Rutter, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Appellee.

Before: SUHRHEINRICH, GRIFFIN, and KETHLEDGE, Circuit Judges.

SUHRHEINRICH, Circuit Judge.

This case is one in a long series of disputes between the National Labor Relations Board ("NLRB" or "Board") and Ozburn-Hessey Logistics ("OHL"). In this instance, OHL reassigned one employee—Jennifer Smith—and terminated another—Nate Jones. M. Kathleen McKinney ("McKinney"), a Regional Director for the NLRB, filed an administrative complaint with the Board claiming that OHL took these employment actions due to an anti-union motive. While that claim proceeded, McKinney sought and received temporary injunctive relief from a federal district court. The injunction gave Smith her old job back and reinstated Jones. We review the decision to grant the temporary injunction. With respect to Smith, we affirm the injunction. With respect to Jones, we find no basis for injunctive relief and vacate the district court’s decision and remand.

I. BACKGROUND

A. Factual History

OHL provides third-party logistics solutions to its customers.¹ Its employees help to collect, pack, and ship products to consumers and retail establishments. OHL employees are currently represented by the United Steelworkers Union ("Union").

The NLRB and OHL have a long and acrimonious history dating back to 2009 when OHL employees first began to unionize. See, e.g. , Hooks ex rel. NLRB v. Ozburn-Hessey Logistics, LLC , 775 F.Supp.2d 1029, 1035 (W.D. Tenn. Apr. 5, 2011) (enjoining OHL from continuing its anti-union coercion); Ozburn-Hessey Logistics, LLC , 362 N.L.R.B. 118 (2015) (ordering OHL to engage in collective bargaining after its refusal to do so); Ozburn-Hessey Logistics, LLC , 357 N.L.R.B. 1632 (2011) (detailing OHL’s unfair labor practices); Ozburn-Hessey Logistics, LLC , 357 N.L.R.B. 1456 (2011) (same). Suffice it to say, OHL has consistently tried to prevent unionization efforts, often through unlawful means. Despite these obstacles, OHL employees successfully unionized on May 24, 2013. On August 19, 2016, a federal circuit court ordered OHL to begin the collective bargaining process. Ozburn-Hessey Logistics, LLC , 362 N.L.R.B. 118 (2015), enforced mem. , 833 F.3d 210 (D.C. Cir. 2016). This case is the next chapter in that story.

In June 2013, OHL reassigned Jennifer Smith to a new job. Smith was an active Union supporter who regularly discussed Union business with co-workers, distributed Union materials, tried to convince her co-workers to sign Union cards, and wore pro-Union apparel to work. Smith, who had been working at one of the Memphis OHL facilities for eight years as a less than trailerload auditor, was reassigned to the position of small parts picker. At OHL, an auditor is in charge of reviewing items packed onto pallets set to be shipped to its customers. This job typically involves inspecting the products, counting the items on the pallet, boxing up and repackaging any loose items, as well as sealing the boxes for shipment. In essence, the auditor is in charge of double-checking everything before it is sent out. A small parts picker, on the other hand, actually prepares the shipment by pulling all of the items from warehouse shelves. This job, which takes place away from the main gates of the warehouse where the temperature is much higher, requires Smith to move about the aisles pulling items according to barcodes scanned by an RF gun and transport them for packing. Job performance as a picker is measured by the speed an employee is able to move these items.

Nate Jones was fired in October 2013. Jones, a janitor for one of OHL’s Memphis facilities, was less outspoken about the Union than was Smith. Jones discussed the Union with his pro-Union colleagues and, on at least one occasion, raised issues about the Union in a meeting with OHL management. Additionally, Jones was involved in an altercation between management and a pro-Union employee. The other employee, Jerry Smith, had been placing pro-Union literature in the breakroom when Phil Smith, an OHL manager, ordered him to stop. Jones witnessed this incident, and Phil Smith later called him into his office to discuss it. Jones told Phil Smith that the only thing he remembered from the altercation was Phil Smith "yelling and screaming" at Jerry Smith. Other than these limited incidents, Jones was apparently very quiet about his feelings towards unionization.

Before being fired, Jones had some problems with safety violations. In June 2013, he received a final written warning because he had been operating his forklift without a seatbelt. This warning alerted Jones that he could be fired for another safety violation. In October of that year, OHL began investigating Jones for stepping away from his forklift while it was still running. He walked fifteen to twenty feet away from the forklift and remained away long enough for another employee to take the key out of the ignition without Jones noticing. This was against OHL safety policy. After an investigation into the incident, an OHL human resources manager recommended Jones’s termination. Shortly after this recommendation, he was fired.

The Union reports that after June 2013, ten employees requested their Union cards back and interest in Union meetings dropped over the course of the next year.

B. Procedural History

On April 30, 2014, McKinney filed an administrative complaint against OHL, claiming that it had committed unfair labor practices in an attempt to stifle Union support. Section 10(j) of the National Labor Relations Act ("NLRA") authorizes the Board to seek temporary injunctive relief in federal court while an unfair labor practices complaint works its way through the NLRB adjudication process. 29 U.S.C. § 160(j) ("Section 10(j)"). On June 13, 2014, McKinney sought a temporary injunction under Section 10(j) that would return Smith to her old position and reinstate Jones. The district court for the Western District of Tennessee granted the injunction on November 20, 2014. McKinney v. OHL , No. 2:14-CV-02445, 2015 WL 480675 (W.D. Tenn. Jan. 29, 2015).

Meanwhile, McKinney’s complaint continued to work its way through the NLRB’s administrative process. On April 28, 2015, an administrative law judge ("ALJ") issued a decision rejecting the unfair labor practice complaints related to Smith and Jones. See Ozburn-Hessey Logistics, LLC , No. 15-CA-097046, 2015 WL 1928271 (N.L.R.B. Apr. 28, 2015). The ALJ held that Smith’s reassignment was not adverse, as she was receiving the same pay and benefits and her new job was no more onerous than her previous one. Id. As to Jones, the ALJ found that he was fired by a human resources manager who did not know about any of his purported pro-Union activities, and thus, his firing could not have been for anti-Union reasons. Id. McKinney filed exceptions to these findings and the Board is currently reviewing the case.

Following the ALJ decision, OHL asked the district court to remove Smith and Jones from the injunction. The district court declined to do so. We review that decision and consider the ongoing propriety of the injunction.

II. ANALYSIS

OHL raises two issues on appeal. First, it claims that the district court’s injunction was invalid at the outset due to a jurisdictional deficiency. Second, it argues that the district court erred in declining to remove Smith and Jones from the injunction.

A. Subject Matter Jurisdiction

During the lower court proceedings, OHL moved to dismiss this case under Rule 12(b)(1). It argued that the district court lacked subject matter jurisdiction because McKinney’s administrative complaint—a jurisdictional prerequisite for Section 10(j) proceedings—was invalid. Specifically, OHL maintains that McKinney was unlawfully "appointed" to run the Memphis region by a Board later declared to have only two legitimate members, NLRB v. Noel Canning , ––– U.S. ––––, 134 S.Ct. 2550, 2574, 189 L.Ed.2d 538 (2014), one shy of a quorum, 29 U.S.C. § 153(b).

In reality, McKinney was not "appointed" to a new position. She was already serving as Regional Director for the New Orleans region and the Board decided to consolidate her region with the Memphis region, leaving McKinney in charge of both. See 77. Fed. Reg. 72886. OHL is correct that the Board authorizing this restructuring did not have a quorum. However, as the district court correctly recognized, the newly confirmed NLRB has since ratified the decision to consolidate the regions. See Minute of Board Action (July 18, 2014), https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-3302/7-18-14.pdf. Even assuming that this restructuring affected McKinney’s ability to file a complaint against OHL—which we do not decide here—this subsequent ratification legitimizes her actions. See, e.g. , Wilkes-Barre Hosp. Co., LLC v. NLRB , 857 F.3d 364, 371 (D.C. Cir. 2017) (holding that a "properly constituted Board" can retroactively ratify the appointment and actions of a Regional Director selected by an invalid Board). Moreover, when McKinney filed her complaint against OHL on April 30, 2014, she did so while operating under the umbrella of the new Board that undisputedly meets the quorum requirement. Thus, OHL can make no argument that McKinney lacked enforcement authority by...