Perez ex rel. Nat'l Labor Relations Bd. v. Noah's Ark Processors, LLC
| Decision Date | 10 May 2019 |
| Docket Number | 4:19-CV-3016 |
| Parties | LEONARD J. PEREZ, Regional Director of the Fourteenth Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NOAH'S ARK PROCESSORS, LLC d/b/a WR RESERVE, Respondent. |
| Court | U.S. District Court — District of Nebraska |
The Regional Director of the National Labor Relations Board has, on its behalf, petitioned pursuant to § 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j) (NLRA), to enjoin alleged unfair labor practices engaged in by the respondent, Noah's Ark Processors.1 As explained below, the Court is at least partly persuaded that that the Board is likely to succeed on its claims that Noah's Ark has engaged in unfair labor practices, and that the remedial purposes of the NLRA would be frustrated unless some immediate action is taken pending the Board's administrative enforcement proceedings. Accordingly—although the Board will not get everything it asked for—the Court will grant the Board's petition.
Noah's Ark is engaged in "the slaughter, processing, packaging and non-retail sale of meat products" in Hastings, Nebraska. Filing 1 at 3. It was party to a January 2013 collective bargaining agreement (CBA) with the United Food and Commercial Workers Union Local No. 293; that CBA expired on January 28, 2018. Filing 18-4 at 1-12.
Starting in November 2017, the Union requested information from Noah's Ark so it could prepare to negotiate a successor agreement to the expiring 2013 CBA. Filing 18-4 at 17-19. That request was renewed in December 2017 and repeatedly in January, February, and March 2018. Filing 18-4 at 20-37. The information was not provided. Filing 18-4 at 18-37.
At a supervisor-employee meeting in late 2017 or early 2018, the Noah's Ark operations manager told employees that the Union would be removed from the plant. Filing 15 at 77-78, 148. According to one employee, the workers asked for raises, and in responding the operations manager told them that "there's no union in the plant" and Noah's Ark would "get rid of [the Union]" because "they didn't allow them." Filing 15 at 19. According to another employee, the workers were told that raises could be given because of the Union's removal. Filing 15 at 149.
At the same time, the Union was trying to get Noah's Ark to actually engage in collective bargaining. See filing 18-4 at 20. The Union asked Noah's Ark for some dates to meet, but Noah's Ark did not respond. Filing 18-4 at 20-23. Eventually, Noah's Ark offered to meet with the Union in Perth Amboy, New Jersey. Filing 18-4 at 26. The Union suggested that Hastings, Nebraska would be better. Filing 18-4 at 26. Noah's Ark countered with negotiations in Grand Island, Nebraska and offered a number of dates in March 2018. Filing 18-4 at 28. The Union accepted any of the dates offered, "provided that [Noah'sArk] provides the requested information in the near future as indicated." Filing 18-4 at 28. Eventually, they agreed to at least start in Grand Island on March 22. Filing 18-4 at 33. At that meeting, Noah's Ark simply received the Union's contract proposal and offered nothing of its own. Filing 18-4 at 37. For further negotiations, Noah's Ark offered April 25 and May 9. Filing 18-4 at 37. On March 28, 2018, the Union filed an NLRB charge based on Noah's Ark's failure to bargain in good faith with the Union. Filing 3 at 3-4.
Meanwhile, on March 27, 2018, a group of employees gathered in the cafeteria, intending to discuss with management the hiring of a new employee at a higher wage than more senior employees. Filing 14 at 258-60. A Noah's Ark superintendent was asked why some people were making more than others, and why raises hadn't been given. Filing 14 at 266. The superintendent replied that it was because of the Union contract. Filing 14 at 266.
The superintendent left, and returned after 15 minutes accompanied by the operations manager. Filing 15 at 269. The meeting had started before the employees' shift, but by this time they were scheduled to be at their stations. Filing 17 at 142-43. The operations manager told the employees that anyone who didn't want to work could go home. Filing 14 at 270. The employees left, but the operations manager told the superintendent to write down the names of some employees, because "[h]e didn't want those employees back into the building." Filing 14 at 270-71.
When the group reached the parking lot, they spoke with the plant manager, who told them that they should go back to their workstations and discuss the problem that day after work. They refused, explaining that if they "went in back to the building and worked that day, they would forget about the issue and [they] wouldn't have a solution to what [they] had asked for." Filing 14 at 275. In response, the plant manager told them that they could either goback to work or leave the premises. Filing 17 at 96. They were told that if they didn't leave, police would be called. Filing 14 at 276; filing 17 at 98. Ten employees were fired. Filing 18-4 at 256-66; see also filing 15 at 150-52, 158-61, 167-72, 182-90.
At some point, the Noah's Ark human resources manager created a preprinted form for employees to sign if they wanted to withdraw from the Union and stop Union dues from being deducted from their pay. Filing 16 at 27-28. Some of the forms were only in English, while others were in English and Spanish. See filing 18-2 at 120-34; filing 18-4 at 132-80. About 60 signed forms were collected from employees between September 2017 and July 2018. Filing 16 at 27; filing 18-2 at 120-34; filing 18-4 at 132-80. However, each employee whose testimony about signing the form is cited by the Board explained that they had been provided with the form after they approached the Noah's Ark human resources manager and asked how to stop paying union dues. See filing 13 at 4; filing 15 at 49, 86, 126, 136-37, 202-03.2
Noah's Ark also prepared a form captioned, "Request for Nondisclosure of Confidential Employment Information." See filing 18-4 at 181-231. The form was written in English, and generally indicated that the signing employee did not want Noah's Ark to disclose "confidential information"—such as identification data and information about hiring, salary, performance, or benefits—to be disclosed without the employee's written consent. See filing 18-4 at 181. Noah's Ark collected about 50 signed forms. Filing 16 at 39. Dates on the forms varied, but they were mostly between early and mid-2018. See filing18-4 at 181-231. The types of information listed on the nondisclosure form bear significant similarity to the information previously requested from Noah's Ark by the Union. Compare filing 18-4 at 17-19 with filing 18-4 at 181.
One employee, who could not read English, testified that he had signed the nondisclosure form after being told that it was necessary to complete his removal from the Union. Filing 15 at 88-91. That employee had previously authorized providing his information to the Union, and it's not clear from the record whether he understood the effect of signing the subsequent form. See filing 15 at 88-96. Two other employees who had left the Union identified their signatures on the forms, but didn't remember signing them. Filing 15 at 126-27, 203-04. And one of them also said that because the form was in English, she didn't know what it said. Filing 15 at 204.
The parties finally met again on May 15, 2018, and Noah's Ark did offer a written proposal. Filing 18-4 at 341. And in June 2018, the parties settled the NLRB bad-faith bargaining charge pursuant to a settlement agreement that required Noah's Ark to provide the Union with the information it had requested and hold bargaining sessions "no less than 24 hours per month for at least six hours per session, or in the alternative, on any another schedule to which the Union agrees." Filing 18-4 at 122-25.
On July 13, Noah's Ark provided information for 15 employees. Filing 18-4 at 274-91. The information on even those 15 employees appears to be incomplete, and as far as the record indicates, no other information has been provided on any of the other employees potentially in the bargaining unit.3 Eventually, information obtained from Noah's Ark by the Board revealed thatNoah's Ark had unilaterally raised employee wages, without discussing them with the Union. See filing 17 at 47-48; filing 18-1 at 176-178.
The Union returned to the NLRB with a July 23 charge, alleging among other things that Noah's Ark had refused to bargain in good faith and had engaged in various unlawful anti-Union activities. Filing 3 at 6-7. Additional charges, and amended charges, were filed in August, September, November, and December 2018, and February 2019. Filing 3 at 8-24. Those charges, as consolidated, form the basis of the underlying administrative proceeding. Filing 3 at 25-37.
As part of its investigation, the Board issued subpoenas to a number of Noah's Ark employees. See, e.g., filing 18-2 at 19. Interviews with the subpoenaed employees were scheduled for November 7, 2019. See filing 18-2 at 19; filing 18-3 at 11. In late October, Noah's Ark retained Kutak Rock, LLP to provide legal counsel to the subpoenaed employees. Filing 18-3 at 1-13. A "Notice to Employees" was provided—in English and Spanish—informing employees that they might be contacted by the Board, that they had the right to have legal counsel when speaking to the Board, and that they could contact the Kutak Rock attorneys that Noah's Ark would pay for "as a benefit to our employees." Filing 18-4 at 253-55.
Although the notice said that employees were "not required or compelled to report to or consult with [Noah's Ark] regarding obtaining legal counsel," at least one employee testified that he had been told by a plant manager that he "needed a company attorney" and that it was "mandatory" to speak with "the company attorney." Filing 15 at 53-54; filing 18-4 at 253. Other employees...
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