Overstreet v. El Paso Disposal, L.P.
| Citation | 668 F.Supp.2d 988 |
| Decision Date | 30 October 2009 |
| Docket Number | No. EP-09-CV-275-DB.,EP-09-CV-275-DB. |
| Parties | Cornele A. OVERSTREET, Regional Director of Region 28 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. EL PASO DISPOSAL, L.P., Respondent. |
| Court | U.S. District Court — Western District of Texas |
David A. Kelly, John T. Giannopoulos, Mara-Louise Anzalone, Michael J. Karlson, National Labor Relations Board, Phoenix, AZ, for Petitioner.
Mark R. Flora, Constangy, Brooks & Smith, LLC, Austin, TX, for Respondent.
On this day, the Court considered Petitioner Cornele A. Overstreet's "Petition for Temporary Injunction Pursuant to Section 10(j) of the National Labor Relations Act, as Amended [29 U.S.C. Section 160(j) ]," filed in the above-captioned cause on July 27, 2009.1 On July 27, 2009, Petitioner also submitted a Memorandum of Points and Authorities. On August 14, 2009, Respondent El Paso Disposal, L.P. responded to the Petition by filing a Memorandum of Points and Authorities, to which Petitioner filed a Reply Brief on August 17, 2009. On August 19, 2009, the Court held a hearing on the Petition at which counsel for both Parties presented oral argument. The Court also considered Respondent's "Motion to Dismiss for Lack of Subject Matter Jurisdiction" and supporting Brief, filed on August 14, 2009. On August 17, 2009, Petitioner filed an Opposition to the Motion to Dismiss. After due consideration, the Court is of the opinion that the Motion to Dismiss should be denied and the instant Petition should be granted for the reasons that follow.
The instant case involves alleged unfair labor practices by Respondent, occurring during the bargaining of a first contract, leading to a strike, and resulting in alleged ongoing unfair labor practices. Respondent, a wholly-owned subsidiary of Waste Connections, Inc. ("Waste Connections"), is a garbage collection and disposal company incorporated in the State of Texas with a place of business in El Paso, Texas. On September 28, 2006, the International Union of Operating Engineers, Local 351, AFL-CIO ("the Union"), was certified by the National Labor Relations Board ("NLRB" or "Board") as the exclusive bargaining representative for Respondent's Maintenance Unit employees. On October 12, 2006, the NLRB also certified the Union as the exclusive bargaining representative for Respondent's Drivers Unit employees. The Union's Business Agent, Victor Aguirre ("Aguirre"), oversaw the Union's organizing drive.
On October 2, 2006, after the employees voted for the Union, Aguirre sent George Wayne ("Wayne")—a Waste Connections management official responsible for Respondent—two letters: the first demanded that Respondent bargain with the Maintenance Unit, and the second made various information requests.2 The first negotiating session occurred on January 30, 2007. During the thirteen-and-a-half months between Aguirre's first request for bargaining and the strike on November 21, 2007, the parties held fourteen bargaining sessions. Typically, these sessions began at 9:00 a.m., broke for an hour-and-a-half lunch, and ended at 3:00 p.m. or 4:00 p.m., resulting in approximately five hours of bargaining per session. Respondent's bargaining committee consisted of Attorney Mark Flora ("Flora"), Wayne, and Gene Dupreau ("Dupreau"), another Waste Connections management official. While only Flora spoke on behalf of Respondent, he did not have the authority to enter into agreements with the Union without Wayne and Dupreau present. As such, either Wayne or Dupreau had to be present at the bargaining sessions with Flora, resulting in scheduling difficulties.3
With regards to the substance of the bargaining sessions, the parties agreed that they would first bargain concerning the Maintenance Unit, addressing non-economic issues first. Throughout the spring and summer, the parties passed proposals and signed tentative agreements on non-economic articles. As of August 9, 2007, only four non-economic provisions were left to be resolved: Grievance/Arbitration, No Strike/No Lockout, Management Rights, and Dues Check-Off. The Union had proposed a Dues Check-Off authorization clause4 during the first bargaining session on January 30, 2007. At the session of May 22, 2007, the Union offered to accept the Management Rights clause if Respondent accepted the Union's Dues Check-Off clause. The Union made this offer again on May 31, 2007, but Respondent rejected it without any explanation. Respondent never submitted a written counterproposal to the Union on this issue.
At the meeting on September 11, 2007, Aguirre informed Respondents that the Union members had voted unanimously to strike.5 The parties decided to table the last four unresolved non-economic items and to turn to the Union's economic proposals. At the meeting on October 4, 2007, the parties continued to discuss the Union's economic proposals, including the cost effect of the Union's benefit and wage proposals. The parties agreed that Dupreau would meet with employees in an attempt to better understand the employees' problems and needs. On October 11, 2007, Dupreau met with employees individually and asked a set of prepared questions. These questions addressed the employee's concerns and desires, what Respondent could do better, what the employee expected from the Union, and whether the Union had done anything to date. In response, Dupreau told certain employees that he would fix the problems between Respondent and his employees and that he would consult with supervisors about employees' concerns.6
Meanwhile, Respondent made work policy changes without bargaining with the Union. For instance, on January 1, 2007, Armando Lopez ("Lopez"), who had supervisory authority over Respondent's Fleet Maintenance employees, issued a memorandum requiring employees to provide a doctor's note if they used one day of sick leave after a specified holiday. Lopez never provided the Union notice or an opportunity to bargain about this change in sick leave policy.7 In June 2007, Respondent transferred Juan Vasquez ("Vasquez"), a tractor/trailer truck driver, to a roll-off driver position and changed his pay rate from hourly to incentive. Francisco Gonzalez ("Gonzalez") took over Vasquez's previous duties, and Respondent raised Gonzalez's salary by $0.75 due to his increased responsibilities. Respondent did not discuss this change and wage increase with the Union in advance. Finally, Respondent did not give employee Jesus Duran a watch for his ten years of service on his ten-year anniversary, as was Respondent's previous longevity bonus practice.
At the next meeting on October 12, 2007, the parties discussed the Union's wage proposal, and Respondent felt that enough progress had been made to present a last, best, and final offer at the next meeting. Aguirre disagreed that the parties were at this step, noting that they had yet to negotiate the Dues Check-Off provision or come to an agreement on the Grievance/Arbitration provision. Aguirre later emailed Flora a request for a copy of Respondent's final offer, but Flora stated that Respondent wanted to present the offer at the actual bargaining session.
On November 13, 2007, Respondent passed its last, best, and final offer. The offer consisted of thirty-two contract articles, of which the parties had previously agreed to twenty-three. The outstanding proposals included those on Management Rights, Holidays, Sick Leave, Uniforms, Fringe Benefits, Grievance/Arbitration, No Strike/No Lockout, Wage Increases, and Longevity Bonuses.8 Respondent's last, best, and final offer included a Managements Rights article granting Respondent discretion in creating workplace rules and regulations; in disciplining, discharging, and laying off employees; and in subcontracting work. The offer did not include a Dues Check-Off provision. At the meeting, the Union left the room while Pete Cinquemani ("Cinquemani"), a federal mediator, summarized the status of the negotiations. Cinquemani reviewed the open wage and benefit articles with Respondent and then met with the Union. Cinquemani returned to Respondent with the Union's demand of five days of sick leave annually, a 365—day cap on back pay for the Grievance/Arbitration clause, a Dues Check—Off provision, an immediate ratification bonus of $1000, and a 5 percent wage increase in the first and second years of the contract. Respondent countered by offering the Union the requested five days of sick leave and increasing the back-pay cap to 150 days. Cinquemani spoke with the Union and then indicated to Respondent that there would not be an agreement.
On November 13, 2007, the Union held a general meeting with employees in the Maintenance and Drivers Units after the bargaining session. At the meeting, Aguirre spoke about the contract negotiations, stating that Respondent "wasn't willing to budge for anything that [the Union] would propose." Aguirre told the members that the Union had made numerous concessions but had not seen any sign from Respondent that they were bargaining in good faith. Aguirre also told employees that the Union would file unfair labor practice charges against Respondent.9 Aguirre explained the difference between an economic strike and an unfair labor practice strike and told the employees that he believed their strike would be an unfair labor practice strike. The Union voted unanimously to strike. Employees had various reasons for going on strike. Some cited "mistreatment [they] received from the supervisors," having to pick up medical waste, workplace safety issues, and discrimination. Others referred to the lack of progress that was being made in the negotiations between the Union and the company.10
Also on November 13, 2007, after the bargaining session, the Union sent Respondent a thirty-three-page long ...
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