United States District Court, N.D. New York
RHONDA P. LEY, Regional Director of the Third Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
NOVELIS CORPORATION, Respondent.
LINDA M. LESLIE, ESQ., MARY ELIZABETH, MATTIMORE, ESQ., NICOLE ROBERTS, ESQ., LILLIAN RICHTER, ESQ., National Labor Relations Board, Buffalo, NY, for the Petitioner.
KENNETH L. DOBKIN, ESQ., Novelis Corporation, Atlanta, GA.
KURTIS A. POWELL, ESQ., ROBERT T. DUMBACHER, ESQ., Hunton & Williams LLP, Atlanta, GA.
EDWARD G. MELVIN, ESQ., Hiscock, Barclay Law Firm, Syracuse, NY, for the Respondent.
MEMORANDUM-DECISION AND ORDER
GARY L. SHARPE, Chief District Judge.
On June 25, 2014, petitioner Rhonda P. Ley, Regional Director of the Third Region of the National Labor Relations Board (NLRB), for and on behalf of the NLRB, filed a petition seeking temporary injunctive relief pursuant to 29 U.S.C. § 160(j), also known as § 10(j) of the National Labor Relations Act (NLRA),  that includes, among other things, a cease and desist order, an interim bargaining order requiring respondent Novelis Corporation to "[r]ecognize and bargain in good faith with [the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC], " (hereinafter "the Union"), and an order restoring an employee to a position from which he was demoted. ( See generally Pet., Dkt. No. 1.) For the reasons that follow, the petition is granted in part and denied in part.
"Novelis is a leading producer of rolled aluminum and the global leader in beverage can recycling, traditionally serving clients in sectors including beverage cans, automotive manufacturing, consumer electronics, construction, and packaging." (Dkt. No. 36 at 2; Dkt. No. 43, Attach. 37 at 14-15.) Novelis' largest, wholly-owned fabrication plant, of the eight it maintains in North America, is the Oswego, New York, facility, which employs over 850 employees. (Dkt. No. 43, Attach. 1 ¶ 21; Dkt. No. 43, Attach. 37 at 17.) Of those 850 employees employed at the Oswego facility, 599 comprised the unit and were deemed eligible to vote for unionization in this case. (Dkt. No. 43, Attach. 37 ¶ 19, at 39-41.)
Beginning at end of 2013, employees began to express dissatisfaction with the conditions of their employment with Novelis. In particular, in November, "employees in the Cold Mill stopped working because they were upset over... upcoming policy changes affecting holiday pay, overtime and [other issues]." (Dkt. No. 36 at 5; Dkt. No. 43, Attach. 6 ¶ 15.) Jason Bro, one of the Cold Mill managers, and Peter Sheftic, Human Resources Manager, met with these employees regarding their concerns. (Dkt. No. 37, Attach. 35 ¶ 3; Dkt. No. 43, Attach. 6 ¶ 16.) In December, Novelis held its annual wage and benefit meeting; at the meeting, plant manager Chris Smith announced certain wage increases that were intended to offset the planned loss of Sunday premium pay and other benefits. (Dkt. No. 65, Attach. 17 ¶ 7.) After the meeting, Novelis employee Everett Abare contacted Union representative James Ridgeway, and, afterward, decided to "seek union representation." ( Id. ¶ 10.) Eventually, Abare and 368 other employees signed union authorization cards. ( Id.; Dkt. No. 65, Attachs. 50-51.) Record evidence suggests that Novelis management knew about the unionization efforts by January 3, 2014, and that a supervisor was told by one particular employee that "[e]mployees were upset about the changes that were implemented and talking about getting a union" as early as December 18, 2013. (Dkt. No. 65, Attach. 17 ¶ 15; Dkt. No. 65, Attach. 52 ¶ 8.)
In a letter dated January 7, Ridgeway demanded that Novelis recognize the Union as the exclusive collective bargaining representative and bargain with it as exclusive bargaining representative of the 599-employee unit. (Pet. ¶ 18(v); Dkt. No. 65, Attach. 5.) Ridgeway's demand was based on his claim that a majority of employees endorsed the Union. (Dkt. No. 65, Attach. 5 at 1.) Novelis declined to recognize the Union, which prompted a secret ballot election. (Dkt. No. 65, Attach. 6.) Although the parties apparently dispute the timing of Novelis' receipt of Ridgeway's letter, (Pet. ¶ 18(v); Dkt. No. 65, Attach. 6), on January 9, Novelis announced that the changes to premium pay and overtime benefits, among other things, would not be instituted as previously planned. (Dkt. No. 65, Attach. 7.)
The facts of the ensuing campaign are disputed, but what follows is apparent from the record. In January and February, high-ranking Novelis officials spoke with employees about the Union, took action regarding union stickers and literature, and enforced, or declined to enforce, certain policies. Ley claims that the interactions, some of which have been transcribed and included in the record, (Dkt. No. 65, Attachs. 8, 11, 12), along with the other conduct, were threatening, coercive, and constituted interrogation or solicitation, and violated NLRA § 8(a)(1). (Pet. ¶ 18(f)-(o); Dkt. No. 1, Attach. 3 at 20-33.) Following the campaigning period, the election was held on February 20 and 21. (Dkt. No. 65, Attach. 2.) Ultimately, 273 employees voted in favor of unionization while 287 voted against it. ( Id. )
Ley alleges violations of § 8(a)(1) and (3) in connection with the eventual demotion of Abare on or about April 11, 2014. (Pet. ¶ 18(q); Dkt. No. 1, Attach. 3 at 33-37.) On that issue, Abare posted the following comment on Facebook on March 29, 2014:
As I look at my pay stub for the 36 hour check we get twice a month, One worse than the other. I would just like to thank all the F*#KTARDS out there that voted "NO" and that they wanted to give them another chance...! The chance they gave them was to screw us more and not get back the things we lost....! Eat $hit "NO" Voters
(Dkt. No. 65, Attach. 14; Dkt. No. 43, Attach. 32 ¶ 6.) Abare, who was a crew leader in the Cold Mill Operations and trainer and officer in the Fire Department and EMT squads, (Dkt. No. 43, Attach. 32 ¶ 8; Dkt. No. 43, Attach. 35 ¶ 7), was stripped of his leadership positions as a consequence of his post although he remains a Novelis employee, (Dkt. No. 43, Attach. 32 ¶ 11).
In connection with the foregoing, the Union, which filed a representation petition with the NLRB on January 13, 2014, (Dkt. No. 1, Attach. 1 at 1), filed a host of charges of unfair labor practices (ULPs) with the NLRB between January 27 and May 22, 2014, ( id. at 2-12). Following an investigation by the NLRB, those charges resulted in a complaint of ULPs, which is currently pending before the NLRB for adjudication. ( Id. at 13-31.) The NLRB thereafter filed the instant petition seeking temporary relief pursuant to NLRA § 10(j). ( See generally Pet.) While the court has endeavored to quickly adjudicate the merits of the petition consistent with the command of 28 U.S.C. § 1657(a), various motions, including two motions by employees both in favor of and opposed to unionization seeking to intervene, (Dkt. Nos. 29, 51), and a motion by the Union seeking amicus curiae status, (Dkt. No. 8), were filed in this case. Those motions were denied in their entirety. (Dkt. Nos. 12, 18, 58.) Finally, on August 21, the parties appeared for an oral return on the petition at which time they were permitted to elucidate their positions.
III. Standard of Review
Section 10(j) of the NLRA provides:
The Board shall have power, upon issuance of a complaint as provided in subsection (b) of this section charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.
In the Second Circuit, a § 10(j) injunction cannot issue unless a two-part showing is made by the petitioner. See Mattina ex rel. Nat'l Labor Relations Bd. v. Kingsbridge Heights Rehab. & Care Ctr., 329 F.App'x 319, 321 (2d Cir. 2009). As the Circuit has succinctly explained:
First, the court must find reasonable cause to believe that unfair labor practices have been committed.
[R]easonable cause to support such a conclusion is sufficient, or put differently, a district court does not... make a final determination whether the conduct in question constitutes an unfair labor practice. In determining whether reasonable cause exists, a district court should show [a]ppropriate deference... to the judgment of the NLRB, and... should decline to grant relief only if convinced that the NLRB's legal or factual theories are fatally flawed. Second, the court must find that the requested relief is just and proper. This Circuit has made clear that courts should grant interim relief under Section 10(j) in accordance with traditional equity practice, as conditioned by the necessities of public interest which Congress has sought to protect. Thus, injunctive relief under § 10(j) is just and proper when it is necessary to prevent irreparable harm or to preserve the status quo.
Id. (internal quotation marks and citations omitted).
On the issue of interim bargaining orders, the Second Circuit has provided the following additional guidance:
"[W]hen the Regional Director makes a showing, based on authorization cards, that the union at one point had a clear majority and that the employer then engaged in such egregious and coercive unfair labor practices as to make a fair election virtually impossible, the district court should issue a bargaining order under § 10(j). In such a case the election process has been rendered so meaningless by the employer, that the authorization cards are a clearly superior gauge of employee sentiment. A bargaining order then becomes a just and proper means of restoring the pre-unfair labor practice status quo and preventing further frustration of the purposes of the Act."
Kaynard v. MMIC, Inc., 734 F.2d 950, 953-54 (2d Cir. 1984) (quoting Seeler v. Trading Port, Inc., 517 F.2d 33, 40 (2d Cir. 1975)).
The court cannot concern itself with what the ALJ or NLRB might do when they are called upon to render determinations as the administrative process unfolds. In the end, it is for this court to decide whether the standard for temporary relief under NLRA § 10(j) has been met, and, concomitantly, whether the requested relief is appropriate.
A. Reasonable Cause
Ley alleges violations of NLRA § 8(a)(1) and (3) based upon a whole series of conduct, some of which is referenced above and all of which is detailed in her petition. (Pet. ¶ 18.) While there are a host of disputed facts, the deferential standard wins the day on the first prong. The court offers a few observations, however, and notes that reasonable minds could differ regarding some of the factual conclusions drawn by the NLRB. For instance, Ley's accusation that Novelis misrepresented to the employees that the Union had filed a charge related to premium pay and other benefits, (Pet. ¶ 18(g)(4)), is not so clear given the content of the letter itself, which could be construed to support exactly what Ley claims Novelis lied to its employees ...