United States District Court, D. Massachusetts
JOHN J. WALSH, JR., Regional Director, Region 01, National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Plaintiff,
LIBERTY BAKERY KITCHEN, INC., Defendant.
MEMORANDUM AND ORDER GRANTING MOTION FOR PRELIMINARY
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE
John Walsh, on behalf of the National Labor Relations Board,
filed a complaint [ECF No. 1] and motion seeking a
preliminary injunction [ECF No. 3] pursuant to Section 10(j)
of the National Labor Relations Act (hereinafter
“NLRA”), 29 U.S.C. § 160(j). The crux of the
case is Walsh's allegation that Defendant Liberty Bakery
Kitchen, Inc. unlawfully withdrew recognition from the
drivers' union in violation of Sections 8(a)(1) and (5)
of the National Labor Relations Act, 29 U.S.C. § 158.
The Court held a hearing on the preliminary injunction motion
on June 29, 2017. For the reasons set forth more fully in the
hearing, the motion for a preliminary injunction is
GRANTED in part.
evaluating a 10(j) petition, the Court must consider two
factors: “whether (1) the Board has shown reasonable
cause to believe that the defendant has committed the
unlawful labor practices alleged, and (2) whether injunctive
relief is, in the language of the statute, ‘just and
proper.'” Pye ex rel. NLRB v. Sullivan Bros.
Printers, 38 F.3d 58, 63 (1st Cir. 1994). “In
assessing whether the Board has shown reasonable cause, the
district court need only find that the Board's position
is ‘fairly supported by the evidence.'”
Id. (quoting Asseo v. Centro Medico Del
Turabo, 900 F.2d 445, 450 (1st Cir. 1990)). To prove
that injunctive relief is “just and proper, ” the
district court must apply the traditional four-part test for
preliminary relief. Id. Those factors are:
“(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 defendant; and (4) That preliminary
relief is in the public interest.” Id.
initial matter, the Court has determined that the Board has
shown “reasonable cause” to believe that
Defendant has committed unfair labor practices, because the
allegation is “fairly supported by the evidence”
adduced at the hearing before the Administrative Law Judge
(“ALJ”) on January 31 and February 2, 2017. [ECF
Nos. 2, 33].
the Court has determined that injunctive relief is
“just and proper” by applying the four-factor
preliminary injunction test.
Plaintiff is likely to succeed on the merits, most
importantly because the ALJ issued a ruling in favor of the
Board on May 25, 2017. [ECF No. 33]. In a thorough opinion,
the ALJ determined that Defendant lacked objective evidence
of an actual loss of majority support at the time it withdrew
recognition from the union. [ECF No. 33 at 1]. The ALJ's
decision does not necessarily reflect the Board's final
administrative ruling, which itself may be appealed.
Nevertheless, the ALJ opinion strongly supports
Plaintiff's case and is a good indicator that he is
likely to succeed.
the potential for irreparable harm in the absence of relief
favors Plaintiff, because even if the union enjoyed majority
support at the time of the withdrawal of recognition, that
support is likely to atrophy while the agency process is
ongoing. In a similar case, the First Circuit recognized that
“there was a very real danger that if [the employer]
continued to withhold recognition from the Union, employee
support would erode to such an extent that the Union could no
longer represent those employees. At that point, any final
remedy which the Board could impose would be
ineffective.” Centro Medico, 900 F.2d at 454.
“As time passes, the benefits of unionization are lost
and the spark to organize is extinguished. The deprivation to
employees from the delay in bargaining and the diminution of
union support is immeasurable.” NLRB v.
Electro-Voice, Inc., 83 F.3d 1559, 1573 (7th Cir. 1996).
the balance of the hardships favors Plaintiff, because in the
absence of injunctive relief, Defendant would reap the
benefit of having committed unfair labor practices while the
union would be forced to wait for reinstatement, with its
support waning in the interim. Furthermore, as some courts
have noted, “when the [employer] is not compelled to do
anything except bargain in good faith, the risk from a
bargaining order is minimal.” Small v. Avanti
Health Sys., LLC, 661 F.3d 1180, 1196 (9th Cir. 2011)
(internal quotation marks omitted). The employer is not
required “to do anything that would cause it harm; it
need do nothing more than follow the ordinary obligations of
an employer under the law.” Id. If the
employer is ultimately successful, it would have suffered the
“financial and administrative costs of good faith
bargaining; these costs, however, are borne by both the union
and the employer and are comparatively minor.”
the public interest supports granting preliminary relief,
because “the public has an interest in ensuring that
the purposes of the [NLRA] be furthered.” Asseo v.
Pan Am. Grain Co., 805 F.2d 23, 28 (1st Cir. 1986).
as the Court noted during the motion hearing, although the
interests of the union and the employer are represented in
this case, no party speaks for the drivers. Plaintiff is
likely to prove that Defendant violated the NLRA by
mishandling the procedure for the withdrawal of recognition,
but the Court is mindful that the union may not in fact have
enjoyed actual majority support at the time Defendant
withdrew recognition. For that reason, the Court is hesitant
to issue an open-ended injunction. Thus, the Court will issue
a preliminary injunction for a period of one year, in the
hope that either the agency process will be close to complete
by that time, or that the parties will reach an agreement.
The parties shall appear for a status conference on June 14,
2018 at 10:00 am, at which time the Court will determine
whether to continue the injunction, to order an election, or
to grant any other such relief as the parties may request.
Plaintiff's Motion for Preliminary Injunction [ECF No. 3]
is GRANTED in part, as follows:
HEREBY ORDERED that, from June 29, 2017 until June 29, 2018,
Defendant Liberty Bakery Kitchen, Inc.
(“Defendant”), its officers, representatives,
agents, servants, employees, attorneys, successors and
assigns, and all persons acting in concert or participation
with it or them, are enjoined and restrained from:
(a) Failing and refusing to recognize International
Brotherhood of Teamsters, Local 653 (the Union), and to
bargain collectively and in good faith with the Union as the
exclusive collective bargaining representative of the
following unit of employees (the Unit):
full-time and regular part-time drivers employed by Defendant
at its 125 Liberty Street, Brockton, Massachusetts facility;
but, excluding office clerical employees, all other