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Walsh ex rel. National Labor Relations Board v. W.B. Mason Co., Inc.

United States District Court, D. Massachusetts

November 28, 2016

John J. Walsh, Jr. ex rel. National Labor Relations Board, Petitioner,
v.
W.B. Mason Co., Inc., Respondent.

          MEMORANDUM & ORDER

          NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE.

         The National Labor Relations Board (“the Board”) alleges that W.B. Mason Co., Inc. engaged in unfair labor practices in response to a union organizing campaign by Mason's employees in 2015, in violation of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151, et seq.

         Pending before the Court is 1) petitioner's motion to decide the temporary injunction on the administrative record and 2) its motion for a temporary injunction, pursuant to § 10(j) of the NLRA, pending final disposition of administrative proceedings now before the Board.

         I. Factual and Procedural Background

         John J. Walsh, Jr., Regional Director of Region 1 of the Board, petitions the Court for a temporary injunction for and on behalf of the Board. Respondent W.B. Mason Co., Inc. is a company that sells and delivers office supplies and related products and services.

         The Board claims that W.B. Mason violated several provisions of the NLRA by employing unfair labor practices when it allegedly 1) interfered with the rights of its employees to organize and bargain collectively, 2) discouraged membership in the International Brotherhood of Teamsters, Local Union No. 25 (“Local 25”) by discriminating with respect to hiring, tenure and terms and conditions of employment and 3) refused to bargain in good faith with Local 25.

         Between October, 2015, and June, 2016, Local 25 filed six administrative complaints with the Board alleging that respondent violated §§ 8(a)(1), (3) and (5) of the NLRA. An Administrative Law Judge (“ALJ”) held a hearing in June, 2016, on the consolidated complaints. On November 4, 2016, the ALJ issued a decision concluding that defendant had engaged in unfair labor practices in violation of those provisions.

         Petitioner filed a complaint in this Court in September, 2016, alleging multiple violations of the NLRA. It seeks a temporary injunction under § 10(j) of the NLRA. Petitioner also filed a motion to try the temporary injunction on the administrative record. The Court heard oral argument on both motions on October 25, 2016.

         II. Petitioner's Motion to Try the Temporary Injunction on the Administrative Record

         First, the Court will allow petitioner's motion to try the temporary injunction on the administrative record.

         The Court's role in reviewing a § 10(j) petition is limited to determining “whether contested factual issues could ultimately be resolved by the Board in favor” of petitioner. Fuchs ex rel. NLRB v. Hood Indus., Inc., 590 F.2d 395, 397 (1st Cir. 1979). This Court is satisfied that it has enough information in the extensive administrative record, including the decision of the ALJ, to decide the merits of the § 10(j) petition. See id. The Court will therefore allow the motion to try the temporary injunction on the administrative record.

         III. Petitioner's Motion for a Temporary Injunction

         A. Legal Standard

         For a district court to grant a temporary injunction under § 10(j), the Board must establish 1) “reasonable cause” that the respondent committed unlawful labor practices and 2) that injunctive relief is “just and proper.” Pye ex rel. NLRB v. Sullivan Bros. Printers, 38 F.3d 58, 63 (1st Cir. 1994). “Reasonable cause” requires that “the Board's position is ‘fairly supported by the evidence.'” Id. The “just and proper” standard requires the Board to satisfy the prerequisites for a preliminary injunction and show:

(1) A likelihood of success on the merits;
(2) The potential for irreparable injury in the absence of relief;
(3) That such injury outweighs any harm preliminary relief would inflict on the respondent; and
(4) That preliminary relief is in the public interest.

Id.

         The Court should not resolve contested issues of fact and should defer to the Board's characterization of the facts as long as it is “within the range of rationality.” Rivera-Vega v. ConAgra, Inc., 70 F.3d 153, 158 (1st Cir. 1995) (quoting Maram v. Universidad Interamericana de Puerto Rico, Inc., 722 F.2d 953, 958 (1st Cir. 1983)). Furthermore, the legal and factual determinations of the ALJ are instructive to the Court. Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 288 (7th Cir.2001).

         B. Application

         In its opposition, respondent addresses only the “just and proper” requirement. Accordingly, the Court will treat petitioner's arguments for “reasonable cause” as unopposed and will simply address the “just and proper” prong of the test.

         1. Strong Likelihood of Success

         Petitioner conceded at oral argument that it must show a strong likelihood of success on the merits of its claims. See Sullivan Bros. Printers, 38 F.3d at 63 (“When . . . the interim relief sought by the Board ‘is essentially the final relief sought, the likelihood of success should be strong.'” (quoting Asseo v. Pan Am. Grain Co. 805 F.2d 23, 29 (1st Cir. 1986)). Respondent generally contends that petitioner cannot make such a showing because respondent has offered legitimate, unrebutted business reasons for its conduct.

         a. Termination of six employees

         First, W.B. Mason contends the NLRB has not shown a strong likelihood of success on the merits with respect to claims arising from the termination of its six employees.

         The propriety of adverse employment actions are analyzed under the Wright Line standard adopted by the United States Supreme Court in NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 395 (1983). Under that test, the Board must first establish a prima facie case that an employee's protected conduct was a motivating factor in the employer's decision to take an adverse action. Hosp. Cristo Redentor, Inc. v. NLRB, 488 F.3d 513, 518 (1st Cir. 2008). If the Board makes such a showing, the burden shifts to the respondent to demonstrate that it would have taken the same action in the absence of the employee's protected activity. Id.

         i. Termination ...


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