Overstreet v. AJNC Industries LLC
| Decision Date | 19 July 2021 |
| Docket Number | 2:21-cv-00730-GMN-EJY |
| Court | U.S. District Court — District of Nevada |
| Parties | REGIONAL DIRECTOR CORNELE A. OVERSTREET, Petitioner, v. AJNC INDUTRIES LLC d/b/a CLARK WELDING & FABRICATING |
Pending before the Court is Petitioner Cornele A. Overstreet's (“Petitioner's” or “the Regional Director's”) Petition for Temporary Injunction (ECF No. 1), which he brings in his capacity as the Regional Director of the National Labor Relations Board (“NLRB”). Respondent AJNC Industries LLC d/b/a Clark Welding & Fabricating (“CWF”) filed a Response, (ECF No. 6), and Petitioner filed a Reply, (ECF No 8).
Also pending before the Court is Petitioner's Motion to Try the Petition on the Basis of the Administrative Record Affidavits, and Documentary Evidence, (ECF No. 3). CWF filed a Response, (ECF No. 7), and Petitioner filed a Reply, (ECF No. 9).[1]
Also pending before the Court is Petitioner's Motion for Leave to file Excess Pages, (ECF No. 4). CWF did not file a Response.[2]
For the reasons discussed below, the Court GRANTS the Motions to Try the Petition on the Basis of the Administrative Record and for Leave to File Excess pages. The Court nevertheless DENIES the Petition.
This case arises from CWF's allegedly unlawful response to a union organizing campaign that began in July of 2020. (See generally Memorandum in Support of Pet. Temp. Inj. (“Pet. Temp. Inj.”), ECF No. 1-1). CWF provides HVAC services including boiler, installation, and fabrication in and around Las Vegas, Nevada. (Apr. 6 Admin. Hearing Tr. 33:1-20, PX 12, ECF No. 1-7). CWF has approximately 24 employees, 14 of which perform boiler and other HVAC services. (Id. 480:8-10); (Aff Austin Peck Dated Jan. 15, 2021 (“Jan. Peck Aff") ¶ 10, PX 6, ECF No. 1-5).
In July of 2020, Austin Peck (“Peck”) an organizer for 5 States Pipe Trades Association (“the Union”) approached two CWF employees, Corey Beran (“Beran”) and Craig Chapman (“Chapman”), at a job site during their lunch break. (Jan. Peck Aff. ¶ 2, PX 6). Peck engaged the employees in discussion about what the Union could accomplish for CWF's employees, provided the employees with Union literature, and gave the employees his phone number. (Id.). Peck then began communicating with Beran and Chapman on a regular basis. (Id.); (See also Aff. Austin Peck Dated Apr. 6, 2021 (“Apr. Peck Aff”) at 8-10, PX 8, ECF No. 1-6). After meeting Beran and Chapman, other CWF employees including Anthony Scalzo (“Scalzo”) and Tyler Christenson (“Christenson”) reached out to Peck regarding their interest in the union campaign. (Jan. Peck Aff. ¶ 3, PX 6).
On September 4, 2020, Scalzo and Peck met at the Union's headquarters, where Scalzo signed a union authorization card. (Id. ¶ 4). Christenson and Peck met at a restaurant the following day, and Christenson signed an authorization card at the meeting. (Id.). As the support for the Union grew among CWF's employees, Peck started regularly keeping in contact with 10 employees, including Beran, Chapman, Rory Johnson (“Johnson”), Kevin Juarez (“Juarez”), Joe Childress, Matt Gonsalez, and Parker Elias. (Id. ¶¶ 5-7). On September 8, Peck received an authorization card from Juarez. (Id.). Around the same time, Chapman informed Scalzo he was ready to sign an authorization card. (Apr. 6 Admin. Hearing Tr. 394:13-21, PX 12).
Meanwhile, as the Union began gaining support, employee Michael Ralls (“Ralls”) was on vacation from September 2-7. (Aff. Michael Ralls (“Ralls Aff.”) ¶ 5, PX 5, ECF No. 1-5). Christenson called Ralls about the Union campaign during his vacation, and Ralls expressed interest in the campaign and asked for Peck's information. (Id.). When Ralls returned, he discovered that he was not scheduled to work for the week of September 7 despite previously being told to return no later than September 7 because he would be needed to work on a large project in Henderson. (Id. ¶¶ 5, 8). On September 8, Ralls met with Peck and signed an authorization card. (Id. ¶¶ 9-10). After signing the card, Ralls contacted HVAC Supervisor Nilson to ask why he was not on the schedule for that week, and when Nilson could not provide an explanation, Ralls said he disagreed with the decision. (Id. ¶ 11). Ralls believes he was the only employee whose hours had been reduced during the week of September 7. (Apr. 6 Admin. Hearing Tr. 326:25-327:12, PX 12).
On September 9, Peck learned that employee Will Perks had informed CWF's owner-managers, Coltin Clark (“Coltin”) and Austin Clark (“Austin”), (collectively, “the Clarks”), about the Union campaign. (Jan. Peck Aff. ¶ 8, PX 6). On the same day, CWF sent its employees a group text message informing them of an all-staff meeting on September 10. (Id. ¶ 9). While the meeting initially focused on complaints regarding cleanliness of work sites, the Clarks pivoted to “[t]he main reason we're doing this meeting, ” discussing the Union. (Tr. Meeting Recording 5:11-13, PX 10, ECF No. 1-7). The Clarks asked questions regarding the extent of the Union campaign, how the employees had been contacted, the effect unionizing could have on the availability of work, and the Union literature that had been distributed to employees. (Id. 5:12-7:4). After the September 10 meeting, Peck stopped receiving messages from most of the employees with whom he had previously been in regular contact, and the Union's momentum stalled. (Jan. Peck Aff. ¶¶ 11-12, PX 6).
After continuing attempts to push the Union campaign forward, Peck and another organizer met with the Clarks to discuss whether the Clarks would prefer to avoid the expense of an anti-union campaign and instead recognize the Union as its employees' collective bargaining representative. (Aff. Austin Clark ¶¶ 2-3, PX 11, ECF No. 1-7). The Clarks declined. (See id.). Later that same day, when Ralls arrived to work in CWF's shop, Coltin ordered Ralls to his office. (Ralls Aff. ¶ 18, PX 5). When Ralls arrived, he was confronted by the Clarks and Nilson where he was told he would be laid off because work had slowed down, and he would be rehired when work picked up again. (Id.).
After the Union campaign fizzled to a stop, an NLRB petition was filed. The NLRB action alleges that CWF responded to the union organizing campaign by engaging in unfair labor practices prohibited under the National Labor Relations Act, 29 U.S.C. §§ 151, et seq. (“NLRA”). Petitioner now seeks a temporary injunction while the NLRB adjudicates the administrative action against CWF.
The NLRA regulates relations between “private sector employers, labor unions, and employees.” See Chamber of Commerce of the United States v. NLRB, 721 F.3d 152, 154 (4th Cir. 2013). When enacting the NLRA, Congress intended to “restor[e] equality of bargaining power” between employees and employers by, “encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment.” 29 U.S.C. § 151. To that end, the NLRA prohibits employers from engaging in defined “unfair labor practices” that discourage or restrain employees from collective bargaining. See 29 U.S.C. § 158. If an employer engages in unfair labor practices intended to undermine a union campaign, the union may petition the National Labor Relations Board (“NLRB” or “the Board”) for relief. 29 U.S.C. §§ 158-160. After initiating an NLRB proceeding, the Board may petition a district court for “temporary relief or restraining order as it deems just and proper.” 29 U.S.C. § 160(j) (“section 10(j)”).
“[W]hen a Regional Director seeks § 10(j) relief, he ‘must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.'” Frankl ex rel. NLRB v. HTH Corp., 650 F.3d 1334, 1355 (9th Cir. 2011) (quoting Winter v. Nat. Res. Dev. Council, 555 U.S. 7, 20-21 (2008)). “‘[S]erious questions going to the merits' and a balance of hardships that tips sharply towards the [Regional Director] can support issuance of a preliminary injunction, so long as the [Regional Director] also shows that there is a likelihood of irreparable harm and that the injunction is in the public interest.” Id. (). Under either standard, the Regional Director “must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.” Alliance for the Wild Rockies, 632 F.3d at 1131 (emphasis omitted); see Small v. Operative Plasterers' Int'l Ass'n, Local 200, 611 F.3d 483, 491 (9th Cir. 2010) ().
Petitioner argues that CWF has engaged in unfair labor practices that violate §§ 8(a)(1) and 8(a)(3) of the NLRA. Petitioner contends that CWF has interfered with its employees collective bargaining rights in violation of § 8(a)(1) by: (1) interrogating employees about their union organizing; (2) describing the act of talking to union representatives while working as “illegal;” (3) threatening future job loss in the event of unionization; and (4) confiscating union literature at an all-staff meeting. (Pet. Temp. Inj. 17:24-25:16, ECF No. 1-1). Petitioner argues that CWF violated § 8(a)(3) by firing Ralls because he supported the Union. (Id. 26:1-33:20). Petitioner requests that the Court issue an order directing CWF to: (1)...
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