Wilson v. Liberty Homes, Inc.

• Decision Date: 16 September 1980
• Docket Number: No. 80-C-221.,80-C-221.
• Citation: 500 F. Supp. 1120
• Parties: Robert J. WILSON, Regional Director of the Eighteenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. LIBERTY HOMES, INC., Respondent.
• Court: U.S. District Court — Western District of Wisconsin

500 F. Supp. 1120

Robert J. WILSON, Regional Director of the Eighteenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. LIBERTY HOMES, INC., Respondent.

No. 80-C-221.

United States District Court, W. D. Wisconsin.

August 18, 1980.

On Motion to Alter and Amend September 6, 1980.

On Motion to Suspend Injunction September 16, 1980.

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Robert V. Johnson, N.L.R.B., Minneapolis, Minn., for petitioner.

E. Allan Kovar, Chicago, Ill., for respondent.

CRABB, Chief Judge.

This is a petition for temporary injunctive relief pursuant to § 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j), brought by the Regional Director of Region 18 of the National Labor Relations Board, pending final decision by the Board on charges that respondent has engaged in unfair labor practices within the meaning of §§ 8(a)(1), (3) and (5), 29 U.S.C. § 158(a)(1), (3) and (5). The respondent is Liberty Homes, Inc., operator of a mobile home manufacturing plant at Dorchester, Wisconsin.

Petitioner alleges that there is reasonable cause to believe respondent interfered with the protected rights of respondent's nine truck driver employees¹ by threatening and interrogating them regarding their union activities, and by unilaterally discharging them and subcontracting out its driving operations because of the drivers' support for the union. Petitioner requests an order enjoining respondent from further engaging in unfair labor practices, and directing respondent to resume its driving operations, rehire the nine discharged drivers, and recognize and bargain with the union, Chauffeurs, Teamsters, Warehousemen and Helpers, Local No. 446 (affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America).

Also pending is a motion by the union to intervene in this action.

MOTION TO INTERVENE

Rule 24(a)(2) of the Federal Rules of Civil Procedure provides that an applicant may intervene as a matter of right if the applicant has an interest in the subject of the action, if disposition of the action may impair the applicant's ability to protect that interest, and if the applicant's interest is not adequately represented by the existing parties.

In this case there is no possibility that the outcome will adversely affect the union's ability to protect it interests. At worst, the union's interests will be unchanged as a result of a decision in this matter, whereas its interests will be advanced if all of the relief requested in the petition is granted.

It is relevant to note that even though it was the charging party before the Board, the union itself never had any power to petition under § 10(j) for temporary injunctive relief, nor could it compel the Board to so petition.² If, subsequent to this order, the union is unable to protect its interests by means of a petition for injunctive relief, that inability is a consequence, not of this order, but of Congress' decision to empower only the Board to bring such petitions, and only in furtherance of the public interest. Muniz v. Hoffman, 422 U.S. 454, 466-7, 95 S.Ct. 2178, 2185, 45 L.Ed.2d 319 (1975). That it is the intent of Congress to exclude charging parties such as the union from any form of participation in § 10(j) actions may be inferred from the fact that § 10(l) (pertaining to temporary injunctive relief in cases involving boycotts or strikes) expressly provides for such participation.³ The union's motion for intervention in this action will be denied.

PETITION FOR INJUNCTIVE RELIEF

Section 10(j) of the National Labor Relations Act authorizes the Board to petition this court for temporary relief whenever a complaint has issued charging a party with engaging in an unfair labor practice. So long as the Board has reasonable cause to believe that the charged party has violated the Act, this court has jurisdiction to order whatever relief is deemed just and proper. Squillacote v. Local 248, Meat & Allied Food Workers, 534 F.2d 735, 743 (7th Cir. 1976). In ruling on petitioner's request for injunctive relief, I will consider separately the "reasonable cause" and "just and proper" requirements.

Reasonable Cause

In making the first determination whether petitioner has reasonable cause to believe that respondent engaged in unfair labor practices, the court's task is limited to determining whether there is evidence which would support the Board's finding that there was reasonable cause to believe that respondent engaged in unfair labor practices, resolving all factual disputes in favor of petitioner. Squillacote v. Graphic Arts International Union, AFL-CIO, 540 F.2d 853, 858 (7th Cir. 1976).⁴ Accordingly, for the limited purpose of determining whether reasonable cause exists, the focus will be on that evidence which favors petitioner's claim.

I find that evidence of the following facts was produced at the hearing held on May 30, 1980:

(1) In the summer of 1979, at a time when the drivers were discussing among themselves the possibility of joining the union, respondent's dealer relations manager, Tom Potts, approached several of respondent's drivers individually and asked about the union's organizing efforts and warned against supporting the union. He told one driver, "It would be a bad mistake to join the union."

(2) On September 24, 1979, the business agent for the union, Jerome Hansen, called on respondent's division manager, William Zabrosky, with cards signed by all nine of respondent's drivers authorizing the union to represent them. Zabrosky refused Hansen's request for voluntary recognition of the union on the grounds that he was without authority to grant recognition and that the driving operation was about to be subcontracted and the company's drivers terminated. The only time respondent offered to recognize the union was at a hearing on a representation petition filed by the union, and that offer was only for the limited purpose of negotiating the effects of the drivers' terminations.

(3) A representation petition filed by the union on September 26, 1979, was dismissed by petitioner on October 24, 1979, on the ground that the subcontracting of respondent's truck driving operation appeared imminent and that as a consequence no useful purpose would be served by conducting an election at that time.

(4) The drivers were not informed that they would be discharged until sometime in October or November of 1979. Their terminations became effective the first week in November.

(5) Prior to 1979, respondent maintained a single 10,000 gallon capacity gasoline storage tank on the premises of its Dorchester plant, for the purpose of fueling the trucks driven by the discharged drivers. Sometime in 1979 a second 10,000 gallon capacity gasoline storage tank was installed at that plant. Also during 1979, four of respondent's trucks were equipped with new radial tires, and two new gas-powered trucks were purchased.

(6) Respondent had been losing money on its trucking operations since 1978 because an increasing percentage of its mobile homes were so large as to cause the rapid deterioration of the trucks owned by respondent and used for hauling the homes. The increasing size of the mobile homes was gradual and not unexpected.⁵

The complaint which underlies this petition charges respondent with committing unfair labor practices within the meaning of §§ 8(a)(1), (3) and (5). In proving that reasonable cause exists to believe one or more of the unfair labor practices charged has been committed, the burden of proof that petitioner must sustain is "relatively insubstantial." Squillacote v. Graphic Arts International Union, AFL-CIO, 540 F.2d 853, 858 (7th Cir. 1976). Moreover, in considering whether petitioner has sustained this minimal burden, all reasonable inferences are to be drawn in his favor. Id. Evaluated in light of these standards, the evidence recounted above is sufficient to support a conclusion that petitioner has reasonable cause to believe that respondent has violated the National Labor Relations Act.

Section 8(a)(3) makes it an unfair labor practice for an employer to discriminate in regard to tenure of employment for the purpose of discouraging membership in a labor organization. Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of their rights to organize and bargain collectively through representatives of their own choosing. The United States Court of Appeals for the Seventh Circuit has described the relationship between these sections and an employer who subcontracts out part of its operations, as respondent has done here, as follows:

It is well settled that an employer violates Sections 8(a)(3) and (1) of the Act by subcontracting part of an integrated business and dismissing the persons employed therein if the action is motivated at least in part by antiunion considerations. NLRB v. National Food Stores, Inc., 332 F.2d 249 (7th Cir. 1964); NLRB v. George Roberts & Sons, Inc., d/b/a The Roberts Press, 451 F.2d 941, 845-946 sic (2nd Cir. 1971). Of course, as employer argues, the converse is true, i. e., an employer does not violate Sections 8(a)(3) and (1) if he makes a decision to subcontract solely for sound business reasons. Jay Foods Inc. v. NLRB, 292 F.2d 317 (7th Cir. 1961); NLRB v. Rapid Bindery, Inc., 293 F.2d 170 (2d Cir. 1961).

NLRB v. Townhouse T.V. & Appliances, Inc., 531 F.2d 826, 828-9 (7th Cir. 1976). Thus, the critical element in a controversy such as the present one is the employer's motivation. Here, when all reasonable inferences are drawn in petitioner's favor, there is ample evidence from which petitioner could conclude that respondent's decision to subcontract its trucking operations was not motivated solely by legitimate business reasons, but was motivated, at least in part, by anti-union considerations. There is...