United States District Court, D. Massachusetts
John J. Walsh, Jr. ex rel. National Labor Relations Board, Petitioner,
W.B. Mason Co., Inc., Respondent.
MEMORANDUM & ORDER
NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE.
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.
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.
Factual and Procedural Background
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.
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
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.
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.
Petitioner's Motion to Try the Temporary Injunction
on the Administrative Record
the Court will allow petitioner's motion to try the
temporary injunction on the administrative record.
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
Petitioner's Motion for a Temporary
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
(3) That such injury outweighs any harm preliminary relief
would inflict on the respondent; and
(4) That preliminary relief is in the public interest.
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).
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.
Strong Likelihood of Success
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.
Termination of six employees
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.
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.