Overstreet v. Tucson Ready Mix, Inc.

• Decision Date: 21 May 1998
• Docket Number: No. CIV 98-180 TUC ACM.,CIV 98-180 TUC ACM.
• Citation: 11 F.Supp.2d 1139
• Parties: Cornele A. OVERSTREET, Regional Director for the Twenty-eighth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. TUCSON READY MIX, INC., Respondent.
• Court: U.S. District Court — District of Arizona

Page 1139

11 F.Supp.2d 1139

Cornele A. OVERSTREET, Regional Director for the Twenty-eighth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. TUCSON READY MIX, INC., Respondent.

No. CIV 98-180 TUC ACM.

United States District Court, D. Arizona.

May 21, 1998.

COPYRIGHT MATERIAL OMITTED

Paul R. Irving, Michael J. Karlson, National Labor Relations Board, Phoenix, AZ, for Petitioner.

Arthur Tracy Carter, Haynes & Boone, LLP, Dallas, TX, for Respondent.

FINDINGS OF FACT AND CONCLUSIONS OF LAW AND TEMPORARY INJUNCTION

MARQUEZ, Senior District Judge.

The Regional Director of the National Labor Relations Board (NLRB) seeks a temporary injunction pursuant to § 10(j) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(j), pending disposition of the labor relations matter currently before the Board. The merits of an unfair labor practice charge are determined by the NLRB and subject to review by the court of appeals. Administrative review can, however, be slow; therefore, Congress provided in § 10(j) of the Act that the NLRB may, as it does here, petition a district court to enjoin alleged unfair practices pending Board review of the substantive evidence of those practices. Calatrello v. Automatic Sprinkler Corp. of America, 55 F.3d 208, 212 (6th Cir.1995).

Respondent, Tucson Ready Mix, purchased Tucson Rock & Sand, Inc. (TR & S), whose employees were represented by respective unions: Operating Engineers Union, Local 428 (Operators Union), and the Teamsters Union, Local 104 (Teamsters Union).¹ The Operators Union was designated as the exclusive collective-bargaining representative of the Operating Engineers Unit at TR & S, and its representative status was voluntarily recognized by TR & S. Recognition of the Operators Union was embodied in successive collective-bargaining agreements, the most recent of which was effective by its terms from May 9, 1995, to November 30, 1998. The Teamsters Union was designated as the exclusive collective-bargaining representative of the Teamsters Unit at TR & S, and its representative status was voluntarily recognized by TR & S. Recognition of the Teamsters Union was embodied in successive collective-bargaining agreements, the most recent of which was effective by its terms from August 21, 1995, to November 30, 1997.²

This action involves unfair labor practice charges filed with the NLRB by the Unions alleging that after the purchase of TR & S, Respondent, a successor employer,³ initially refused to recognize the Unions as the exclusive collective-bargaining representatives of Respondent's employees and, thereafter, after briefly extending recognition of the Unions but without bargaining, withdrew recognition from the Unions. Since Respondent withdrew recognition from the Unions, Respondent has failed to recognize and bargain with the Unions as the exclusive collective-bargaining representatives of Respondent's employees. (Petitioner's Memorandum of Points and Authorities in Support of Petition (P's Memo.) at 2.)

Petitioner asks this Court to order Respondents to recognize and bargain with the Unions; enjoin Respondent from making unilateral changes in employees' terms and conditions of employment; from interfering with, restraining, or coercing employees in the exercise of their collective-bargaining rights, and post copies of the Court's decision. (Petition at 9-10.) The Petitioner does not seek reinstatement of the terms and conditions of the collective bargaining agreements in place prior to Tucson Ready Mix's purchase of TR & S, which would include lower wages which Respondent unilaterally increased.

A.

STANDARD FOR RELIEF UNDER 29 U.S.C. § 10(j)

This proceeding is ancillary to the NLRB's administrative proceeding. The principal issue before a district court in this type of proceeding is not the determination of the merits of the underlying case, but rather is whether Petitioner's request for temporary injunctive relief is just and proper. In making this determination, the Ninth Circuit has admonished the district courts to consider traditional equitable principles "through the prism of the underlying purpose of Section 10(j), which is to protect the integrity of the collective-bargaining process and to preserve the Board's remedial power while it processes the unfair labor practice charge." Miller v. California Pacific Medical Center, 19 F.3d 449, 459-60 (9th Cir. 1994). The just and proper standard, incorporating the traditional equitable criteria for injunctive relief,⁴ focuses on petitioner's likely success of prevailing on the merits of the Complaint's allegations. At a minimum the Petitioner must demonstrate a fair chance of success on the merits. Id. at 460. Under the "likelihood of success" standard adopted in Miller, the Court must make a judgment of "how" likely the petitioner is to succeed. The degree of likelihood is factored into the balance of harms analysis on a "sliding scale," so when the balance of hardships tips sharply in the movant's favor only minimal likelihood of success need be shown and vice versa. Id. at 456.

Into the traditional equitable analysis, the Court must factor in the district court's lack of jurisdiction over unfair labor practices and the considerable deference accorded to the NLRB by the court of appeals which will uphold decisions of the NLRB if its findings of fact are supported by substantial evidence and if it has correctly applied the law. Even in its de novo review of questions of law, the court of appeals gives considerable deference to the NLRB's construction and application the labor laws. Id.; NLRB v. International Brotherhood of Electrical Workers, Local Union 112, 992 F.2d 990 (9th Cir.1993). The Court must also take into account the probability that declining to issue the injunction will permit allegedly unfair labor practices to reach fruitation and, thereby, the NLRB's remedial authority will be rendered meaningless. Miller, 19 F.3d at 456 (citing Amoco Prod., Co. v. Village of Gambell, 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (if injury is sufficiently likely, balance of harm will usually favor issuance of injunction).

So while the Court is not required to defer to the Board in deciding whether interim relief is just and proper, the Court evaluates the probability of Petitioner's success in light of the fact that ultimately, the Board's determination on the merits will be given considerable deference. While Petitioner can prevail with a showing of a "fair chance" or "modest chance" of success, id., at 457, 460, if the NLRB demonstrates that it is likely to succeed on the merits the Ninth Circuit presumes that irreparable injury exists, id. at 460. Petitioner can show "likelihood of success" by producing "some evidence to support the unfair labor practice charge, together with an arguable legal theory." Id. The presumption operates because in a statutory enforcement case when the government meets the "probability of success" prong for injunctive relief, the passage of the statute implies that Congress has determined violations harm the public. Id. at 459.

If this Court finds that the NLRB has only made a colorable evidentiary showing on the unfair labor charges, it must assess the possibility of irreparable injury. Id. If the Court, however, finds that the NLRB has produced some evidence to support the unfair labor practice charge, together with an arguable legal theory, a presumption of irreparable injury exists. Id. at 460. When exercising its equitable discretion, this Court must factor in the public interest and pay particular attention to the public consequences of employing the extraordinary remedy of injunction. Id. (citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982)). "In 10(j) cases, the public interest is to ensure that an unfair labor practice will not succeed because the Board takes too long to investigate and adjudicate the charge." Id. "Thus, the courts must consider the extent to which this interest is implicated under the circumstances of the particular case." Id.

B FINDINGS OF FACT

To the extent these Findings of Fact are also deemed to be Conclusions of Law, they are hereby incorporated into the Conclusions of Law that follow.

1. On June 6, 1997, Respondent finalized the purchase of TR & S, changing the name to Tucson Ready Mix.⁵ On June 6, at the close of the business day, Tucson Ready Mix terminated all employees. The following day, a meeting was held for interested applicants to learn about Tucson Ready Mix and to file employment applications. The ex-TR & S employees were told that Tucson Ready Mix had "the right, having purchased the assets of TR & S, to establish new wages, hours and working conditions on the date we take over." (Respondent's Memorandum of Points and Authorities (R's Memo.) at Exhibit 1(B).) The prospective employees were told that although as TR & S employees they had been covered by a collective bargaining agreement, that contract was no longer applicable and that wages, hours and working conditions would be set by Tucson Ready Mix. (R's Memo. at Exhibit 1(B)); (Appendix of Exhibits in Support of Petition for Injunction Under § 10(j) (P's Exhibits) at 00072 (relying on Collective Bargaining Agreements at Article II pp. 34, 52.)

2. The benefits offered by Tucson Ready Mix, by and large, were the same as those at TR & S. Wages, however, exceeded those existing under the TR & S bargaining agreement by approximately 50 cents to one dollar. (P's Exhibits at 000120, 00122, 00128, 00130, 00134, 00136, 00139, 00141, 00143, 00146.) Tucson Ready Mix rehired all, but four, of TR & S's 129 employees. (P's Exhibits: Martinez Depo. at 00119.) At this initial meeting, Tucson Ready Mix expressed the following views regarding unions:

employees do not need a union, but the bottom line is that that issue is one that is ultimately up to you and not to us....