Overstreet v. One Call Locators Ltd.
| Decision Date | 08 September 2014 |
| Docket Number | No. CV–14–01649–PHX–ROS.,CV–14–01649–PHX–ROS. |
| Citation | 46 F.Supp.3d 918 |
| Court | U.S. District Court — District of Arizona |
| Parties | Cornele A. OVERSTREET, Petitioner, v. ONE CALL LOCATORS LIMITED, Respondent. |
Fernando Jose Anzaldua, Marissa Erin Thielen, Paul R. Irving, National Labor Relations Board, Phoenix, AZ, for Petitioner.
Alastair James Gamble, Frederick Charles Miner, Littler Mendelson PC, Phoenix, AZ, Richard P. Doyle, Jr., Jaime Bianca Herren, Doyle Low LLP, Orinda, CA, for Respondent.
Before the Court is Petitioner's Petition for Temporary Injunction Under § 10(j) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 160(j). For the following reasons, the Petition will be granted in part.
Except as explicitly noted, the following is the Court's view of the evidence. Respondent is a Montana corporation with facilities in Phoenix that contracts with utility companies to locate the contracting company's underground utility lines. Individuals or businesses in Arizona that intend to dig into the ground on their property must first have the underground utility lines identified and marked. Some of Respondent's' employees serve as “local technicians” or “locators” who identify and mark on the ground any underground utility lines belonging to the utility companies. Respondent has a workforce of approximately 80–90 locators in Phoenix.
In January 2014, some of Respondent's Phoenix employees attempted to organize to gain union representation with the International Brotherhood of Electrical Workers Local 387, AFL–CIO (the “Union”).1 On or about January 5, 2014, Daniel Polley, an employee of Respondent, reached out to Robert Sample, a representative of the Union. Polley signed an authorization card2 and invited Sample to speak with other employees about the Union. On January 27, Mike Perez, a supervisor for Respondent, held a tailgate meeting at a Kmart parking lot on 1–17 and Northern.3 About 20 to 30 employees attended. When Perez finished speaking, Sample approached the employees about their right to organize. Sample also approached Perez to introduce himself, and according to Sample, Perez “pretty much said, it is ok, I know what you are here to do.” According to Polley, Perez did not leave until all the employees were gone. Respondent subsequently announced that all tailgate meetings would occur at Respondent facilities. Sample and Polley spent the next several weeks handing out Union literature and collecting authorization cards from employees.
In early January 2014, Garrett Forrest, also an employee of Respondent, attended a tailgate meeting and learned of planned cuts to his employee benefits. The employees were informed via text message their vacation time would be reduced from six paid holidays to three paid holidays, and their health care benefits would be entirely cut. Forrest took a picture of the screen on his phone with the text message and told other employees to do so as well. Later that day, Forrest called manager Jorden Serfass and asked for an explanation regarding the cut in benefits. According to Forrest, he told Serfass and his supervisor Milton Austin he thought the cuts were “bullshit.” On January 16, 2014, Forrest was injured while working and took workers' compensation leave. On January 28, 2014, Sample came to Forrest's home, where Forrest signed an authorization card and returned it to Sample. Forrest was not on the Union's organizing committee and Sample was not aware of any supervisors or managers who observed Forrest talking to co-workers about his desire for union representation
On that same day, Respondent flagged two transactions in which Forrest's personal identification number (“PIN”) appeared to have been used to purchase diesel fuel on Saturday January 25, 2014 in Glendale, Arizona, and Sunday January 26, 2014 in Sun City, Arizona.4 None of Respondent's vehicles operate on diesel fuel. Respondent has a strict policy, of which Forrest was aware, that misuse of a gas card will result in discipline up to and including termination. The extent of Respondent's investigation of the stolen gas was confirmation that it was diesel fuel that was stolen and that it was Forrest's pin number that was used. Forrest returned to work on January 31, 2014 and was terminated that day. When Respondent terminated Forrest, Respondent informed Forrest that if he wished to challenge his termination he must contact his supervisor the following day. Forrest did not contact Human Resources or anyone in management to challenge the findings regarding his termination.
On March 3, 2014, Respondent asked Polley to meet with Serfass in the field after Southwest Gas reported a damaged gas line. Polley told Serfass that he had experienced difficulty when attempting to locate the gas line and had called Austin to help him. Though Serfass never spoke with Austin about the issue, Serfass claims he checked Respondent's records and did not see any record of a “trouble locate” in relation to this site. The damage to the line was recorded on Polley's record, although there was no actual gas leaking from the line. Prior to this incident, Polley had been responsible for gas damage in September 2013 and December 2013, in which the gas lines were punctured and gas spilled into the air. However Polley was not disciplined for these two prior incidents and Polley believed they had not been included on his record.
The following day, Perez told Polley his Southwest Gas card had been revoked and he could not do assignments involving gas lines. Later that day, Perez suspended Polley for three days. On March 6, 2014, Polley met with Robert Eggli, Perez, and Serfass. Eggli explained to Polley that he had been suspended due to his previous “record of damages.” Eggli referred to Polley's previous “write-ups” that his supervisor Austin had signed, but Polley had refused to sign. Polley claims he was never presented with such write-ups and that Austin denies ever having signed such documents.5 Normally, it is Respondent's policy to have two managers sign off on a discipline form when an employee refuses to sign. On March 11, 2014, Polley again met with Perez, Eggli, and Serfass. Eggli informed Polley that because his gas card had been revoked, he could not be recertified, and his employment had been terminated. Polley was never placed on a probation period or made eligible for rehire. At least two other employees had their gas cards revoked, but were not fired. Since Polley's termination, Union organizing activities slowed.
On February 25, 2014, the Union filed a petition for representation election. At the time it petitioned for the election, the Union had collected 55 authentication cards out of the approximately 90 employees working out of Phoenix. Respondent alleges it was unaware of any Union organizing activity until it received this petition for representation election. In late February, Respondent also hired two labor consultants to speak with the employees. These consultants solicited grievances from employees. In March 2014, Respondent reinstated the paid holiday leave, which had been cut in January 2014. Respondent also provided improved equipment to employees.
Originally, the parties agreed those eligible to participate in the election included only employees from Phoenix. However, Respondent proposed they open the election to locators in surrounding locations such as Prescott, Flagstaff, and Globe. This would increase the potential voting population to about 100. The Union agreed and held the election on March 28, 2014. The agreement to open the election to other areas did not include Tucson. The Union lost the election by a vote of 43 to 47. Two employees from Yuma were denied the right to vote in the election.
On April 2, 2014, the Union filed an unfair labor practice charge with NLRB, alleging unlawful termination of two employees during the organizing drive, in violation of § 8(a)(3) of the NLRA. On April 4, 2014, the Union also filed objections to Respondent's conduct affecting the election, alleging violations of § 8(a)(1) of the NLRA. On April 8, 2014, the Union filed an additional charge with the NLRB, seeking a remedial Gissel bargaining order, which would require Respondent to recognize the Union as the collective bargaining agent of the employees, despite having lost the election, alleging violations of §§ 8(a)(1), 8(a)(3), and 8(a)(5). On May 30, 2014, the NLRB issued an order consolidating the first two charges and setting an administrative hearing before an ALJ on September 9, 2014. The parties have allotted three weeks for litigation before the ALJ. On July 11, 2014, the third charge was consolidated into the case, and on July 14, 2014, an amendment to the complaint was issued by the Regional Director. On July 22, 2014, Petitioner moved for a temporary injunction in the district court, pursuant to § 10(j) of the NLRA.
Pursuant to § 10(j) of the NLRA, a regional director of the NLRB may petition a district court for injunctive relief against a party against whom an NLRB unfair-labor-practice administrative action is also pending.See 29 U.S.C. § 160(j) ; Frankl v. HTH Corp., 650 F.3d 1334, 1341 (9th Cir.2011). “The purpose of a § 10(j) injunction is ‘to protect the integrity of the collective bargaining process and to preserve the Board's remedial power while it processes' an unfair labor practice complaint.” Frankl, 650 F.3d at 1341 (quoting Miller v. Cal. Pac. Med. Center, 19 F.3d 449, 459–60 (9th Cir.1994) (en banc)). While some deference is accorded to the NLRB on factual issues, the final determination of whether to issue an injunction rests within the discretion of the district court. See Miller, 19 F.3d at 458 (...
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