Opinion
No. 1:04-CV-0123-JDT-TAB.
June 29, 2004
ENTRY ON PETITION FOR INJUNCTIVE RELIEF
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This cause comes before the court on the Petition for Injunction Under Section 10(j) of the National Labor Relations Act, As Amended (the "Act"), seeking injunctive relief pending final disposition of matters before the National Labor Relations Board (the "Board"), charging that the Respondent, E.L.C. Electric, Inc., has engaged in and is engaging in unfair labor practices in violation of sections 8(a)(1) and (3) of the Act. The Respondent opposes the petition.
These facts come from the record of the ALJ's administrative hearing as supplemented by the parties evidentiary submissions filed with their memorandum.
E.L.C. Electric, Inc. (the "Company") is an electrical contractor in the construction industry and has its office and principal place of business in Indianapolis, Indiana. Edward Calvert is its owner and President. Kevin Passman is Vice President of Operations, and Michael Swalley is General Superintendent. The Company employs approximately six Project Managers who work in the field, including Christine Patterson, in addition to a number of office staff.
In the summer of 2002, the International Brotherhood of Electrical Workers, AFL-CIO and the International Brotherhood of Electrical Workers Local Union No. 481 (collectively the "Union") began its organizational efforts of the Company's employees. On July 8, the Union notified the Company that employee Brad Krebbs was the chairman of the Union's organizing committee and Krebbs wore a union shirt to work. On July 11, Union organizer Steve Dunbar started distributing hand bills at one of the Company's largest projects, the Wal-Mart jobsite in Columbus, Indiana. The next day, July 12, Project Manager Patterson told the employees at the jobsite that she knew the Union was handbilling the day before and she did not care if the employees went Union or not, but she did not want any Union talk on Company time and would not tolerate Union guys on her job. (Tr. at 256, 747.)
On July 16, the Company learned from the Union that employee Jason Dunn was a member of the Union's organizing committee and Dunn began wearing a Union shirt to work. That day, Patterson told Dunn that she could not believe he was supporting the Union and reminded him that she had told him she did not want any Union guys on her job, and that it was "a slap in the face." (Tr. at 752.) She said that she would fire him if she could and she would let everyone know he was a "union mole" so that nobody would look at him the same. ( Id.) Patterson called a meeting of all of the Company's employees working at the jobsite and, at the meeting, she pointed to Dunn and identified him as the "union mole." (Tr. at 263, 322-23, 754.) She said that they should stay away from him, not give him any of their information, and not talk to him about the Union. She stated that the employees could not touch him on Company time, but she did not care what they did to him after that, "That's personal." ( Id. at 755.) Patterson indicated that if there was any "crap work," that Dunn would be doing it and if she could fire him, she would, but she could not since he worked for the Union. She wrapped up the meeting by again stating that she did not want any Union talk on Company time. ( Id. at 263-64, 321-23, 753-56.)
The next day, July 17, employee Corey Leineweber wore a Union shirt to the Wal-mart jobsite. Patterson told him that she was not surprised as she suspected another union mole on the job. (Tr. at 267.) She then assigned Dunn and Leineweber to work together that day, saying that she did this so they would not spread the "Union shit" to other employees. ( Id. at 268, 758, 760.) On July 18, Dunn and Leineweber again wore Union shirts to work. When Patterson saw Leineweber, she said that if he was going to go Union, "she didn't understand why I don't just get out and go." (Tr. at 271-72.) Later, Patterson assigned Dunn and Leineweber to cleanup work for the remainder of the day. The following morning Dunn was not at work and Patterson asked Leineweber if Dunn had gone Union and, if he had, why Leineweber had not gone with him. ( Id. at 278.)
By July 29 the Union had obtained sufficient support to file an election petition and did so. As time went on, Patterson continued to tell employees on several occasions in late July and early August that she did not want any Union talk on her job. (Tr. 710-11.)
In September 2002, on several occasions, General Superintendent Swalley and Vice President Passman visited the Company's jobsites to campaign for the Company and answer employee questions. After one such meeting, Swalley and Passman asked to speak with employee Benjamin Adair in private. Swalley said that it was "off the record," but he had heard that Adair was pro-Union and was pushing for the Union. Swalley questioned Adair whether he was pro-Union. (Tr. 368-70.)
On September 26, an election was conducted by the Board for a unit of electrical employees. The results were eleven votes for the Union, thirteen votes against the Union, and six challenged ballots. The Union filed objections to the conduct of the election. On December 23, the Director issue a report on the challenged ballots which was consolidated with the unfair labor practice proceeding.
On December 18, General Superintendent Swalley went to the jobsite to discuss with employee Bruce Sanderson his performance review. Sanderson previously had been identified to the Company in a Union letter as part of the Union organizing committee. Swalley repeatedly asked Sanderson why, if he was pro-Union, did he come to work for a merit shop. (Tr. at 665-66, 668.) Sanderson inquired of Swalley whether there would be layoffs and how they would be conducted, and Swalley answered that the Company would try to keep loyal employees. ( Id. at 669.)
On December 31, Swalley discussed the Union's organizing campaign with All Trades employee Jerry Tucker who was working on the Company's jobsite. Swalley advised that he would like to hire Tucker and another All Trades employee, Wes Fink, but he could not because he was having problems with the Union. On January 7 or 8, 2003, Swalley again told Tucker that he wanted to hire him, but that he wanted to get rid of a couple of other people for various reasons, and he could not just hire and fire who he wanted because he was afraid of being sued by the Union.
On January 8 or 9, employee Sanderson was working when Swalley approached him saying, "it's time." (Tr. at 677-78.) Swalley gave Sanderson a termination slip, indicating that he was being laid off for lack of work. Sanderson had been told by Swalley back in September 2002 that the Company had plenty of work and that it was the "union boys" who did not have any work. ( Id. at 645.)
On February 17, 2003, employee Mikalis Grunde was working at the Company's jobsite when Swalley gave him a termination slip, said that things were slowing down and that the Company would have to lay off some employees. On November 25, 2002, the Union had notified the Company that Grunde was part of the Union organizing committee.
On March 14, 2003, the Company terminated all thirteen of its remaining electrical employees. The Company had made a prior arrangement with All Trades and, as a result, twelve of these employees were hired by All Trades and immediately referred back to work on the Company's various job sites. Following this mass layoff, the Company had eleven employees on its payroll, excluding the owner, his wife and his son. All remaining employees were classified as administrative, personnel, or management.
Employee Ben Adair was terminated as part of the mass layoff. When asked, Swalley told Adair "off the record," that the layoffs were because of the pending lawsuits and the problems with the Union. (Tr. at 373.) Employee Tucker was called back to work as an All Trades employee at one of the Company's job sites. Swalley told Tucker that for all practical purposes he was now an employee of the Company. ( Id. at 427.)
On or about July 9, 2002, and on other dates ending on March 25, 2003, the Union filed several charges with the Board against the Company, alleging that the Company had engaged in, and is engaging in, unfair labor practices within the meaning of
sections 8(a)(1) and (3) of the Act. Amended charges were filed by the Union on several dates between September 25, 2002 and June 3, 2003. These charges were referred to the Director who, on June 19, 2003, issued an order consolidating cases, consolidated complaint and notice of hearing. An administrative hearing on the consolidated complaint was held before Ira Sandron, Administrative Law Judge ("ALJ") for the Board on August 20, 21, 22 and November 4 and 5, 2003, during which the parties presented evidence.
On April 7, 2004, ALJ Sandron issued his decision and recommended order. He found almost all of the violations of the Act alleged by the Director. The ALJ found that the Company engaged in unfair labor practices in violation of sections 8(a)(1) and (3) of the Act by, the following conduct:
(a) promulgated and maintained a rule prohibiting employees from discussing or soliciting on behalf of the Union;
(b) suggested physical violence against employees because they supported the Union;
(c) denigrated employees because they supported the Union.
(d) instructed employees not to discuss the Union with other employees;
(e) isolated employees from other employees because of their support for the Union;
(f) solicited employees to quit employment because they supported the Union;
(g) created the impression among employees that their Union activities were under surveillance;
(h) interrogated employees concerning their Union activities and sympathies;
(i) told employees that they would be laid off because of their Union activities;
(j) told prospective employees that they could not be hired because the [Company's] employees had engaged in Union activity;
(k) told employees they were being laid off and would be required to work through a labor provider because they engaged in Union activity.
(ALJ's Decision at 30.) ALJ Sandron also found that the Company engaged in unfair labor practices by assigning more onerous working conditions to Dunn and Leineweber, by laying off employees, and by ultimately laying off the remaining electrical employees and requiring them to work through a labor provider because of their Union activities. ( Id.) The ALJ further found that the Company engaged in illegal election tactics, giving pay raises designed to influence employees' votes in the election and failing to comply with election notice requirements. ( Id. at 24-25.)
ALJ Sandron recommended that the Company be ordered to cease and desist its unfair labor practices and to take certain affirmative action designed to effectuate the policies of the Act, including offering reinstatement to the discriminatorily laid off employees and posting at its Indianapolis facilities copies of the notice to employees attached to the ALJ's Decision as "Appendix." (ALJ's Decision at 31-32.) The ALJ also recommended that the September 2002 election be set aside. ( Id. at 25.)
II. DISCUSSION
Section 10(j) of the Act authorizes a district court to enter "just and proper" injunctive relief pending the final disposition of an unfair labor practices claim by the Board. 29 U.S.C. § 160(j). Section 10(j) relief should be granted "`only in those situations in which the effective enforcement of the NLRA is threatened by the delays inherent in the NLRB dispute resolution process.'" NLRB v. Electro-Voice, Inc., 83 F.3d 1559, 1566 (7th Cir. 1996),(quoting Szabo v. P*I*E* Nationwide, Inc., 878 F.2d 207, 209 (7th Cir. 1989)), cert. denied, 519 U.S. 1055 (1997); see also id. at 1567 ("the court's mission is to determine whether the harm to organizational efforts that will occur while the Board considers the case is so great as to permit persons violating the Act to accomplish their unlawful objectives, rendering the Board's remedial powers ineffectual"). Such a situation is presented here.
A request for injunctive relief under section 10(j) requires the court to weigh the same factors it would weigh when considering preliminary injunctive relief in other contexts. Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 286 (7th Cir. 2001); Electro-Voice, 83 F.3d at 1566-67. Therefore, to be entitled to injunctive relief, the Director must show that: (1) he has a likelihood of success on the merits, that is, a "better than negligible chance of prevailing," Electro-Voice, 83 F.3d at 1567; (2) he has no adequate remedy at law, meaning that "an award of damages would be `seriously deficient,'" id.; (3) the labor effort would be irreparably harmed without injunctive relief, and that harm outweighs any harm to the employer if an injunction is issued, id.; and (4) "public harm" would occur in the absence of injunctive relief, id.; see also Bloedorn, 276 F.3d at 286. The first, second and fourth of these must be established by the Director by a preponderance of the evidence. Bloedorn, 276 F.3d at 286; Electro-Voice, 83 F.3d at 1567. The Director must also establish irreparable harm by a preponderance of the evidence, but "[t]he more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor. . . ." Bloedorn, 276 F.3d at 286-87; see also Electro-Voice, 83 F.3d at 1567-68.
A. Likelihood of Success on the Merits
The court starts with the Director's likelihood of success on the merits of his complaint against the Company. The charges filed with the Board allege that the Company engaged in, and is engaging in, unfair labor practices in violation of sections 8(a)(1) and (3) of the Act. The evidence shows that the Director has a "better than negligible" chance of success on the merits of his claims. Regarding section 8(a)(1), the Director offers unrebutted testimony regarding conduct of Project Manager Patterson which violates this section. For example, the evidence is that on July 12, the day after Dunbar began handbilling for the Union at a Company jobsite, Patterson told employees that she was aware of this and she did not want any Union talk on her job and would not tolerate any Union guys on her job. Then, a few days later, she called an employee meeting at which she identified Dunn as a "union mole," instructed the other employees to stay away from him, endorsed physical violence against him, indicated that he would be given "crap work," and that she would fire him if she could, and again reiterated that she did not want any Union talk on Company time. Thus, the Board could readily find that the Company through Patterson engaged in acts that interfered with, restrained, or coerced employees in the exercise of their rights guaranteed under section 7 of the Act all in violation of section 8(a)(1).
Section 8(a)(1) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." 29 U.S.C. § 158(a)(1). Section 7 gives employees "the right to self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection[.]" 29 U.S.C. § 157. Section 8(a)(3) makes it unlawful for an employer to discriminate "in regard to hire or tenure of employment or any term of condition of employment to encourage or discourage membership in any labor organization." 29 U.S.C. § 158(a)(3).
Regarding section 8(a)(3), the Director offers evidence, for example, that employees Dunn and Leineweber were given unfavorable working conditions right after the Company learned of Dunn's membership on the Union's organizing committee and the two employees had begun wearing Union shirts to work. Moreover, the Company subsequently terminated employees Sanderson and Grunde, who previously had been identified to the Company as members of the Union organizing committee, and thereafter the Company terminated all thirteen of its remaining electrical employees. From this evidence, and the circumstances of the terminations, together with all the other evidence that the Company held an anti-Union animus, the Board could reasonably infer that the Company took these actions to discourage membership in a labor organization in violation of section 8(a)(3).
Furthermore, the ALJ's decision is "relevant to the propriety of section 10(j) relief." Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 288 (7th Cir. 2001). The reason for this is that the court's assessment of the Director's likelihood of success on the merits is a prediction of how the Board is likely to decide. The ALJ "is the Board's first-level decisionmaker" whose "factual and legal determinations supply a useful benchmark against which the Director's prospects of success may be weighed." Id. With the ALJ's decision as a benchmark, the court finds that the Director's likelihood of success is very strong indeed.
The ALJ found in favor of the Director on almost all of the unfair labor practices allegations asserted in the consolidated complaint, and, in seeking section 10(j) relief, the Director no longer relies on the allegations for which the ALJ recommended dismissal. (Notice of Issuance of Admin. Law Judge's Decision Withdrawal of Certain Allegations at 3.) The ALJ found that the Company engaged in unfair labor practices in violation of the Act by, among other conduct, promulgating and maintaining a rule prohibiting employees from discussion or soliciting on behalf of the union, telling employees they would be laid off because of their union activities, creating the impression among employees that their union activities were under surveillance, assigning more onerous working conditions to certain employees, disciplining another employee, and even suggesting physical violence against union supporters. (ALJ Decision at 30.) In addition, the ALJ found that two employees were terminated in retaliation for their union sympathies and that the Company ultimately laid off the remaining electrical employees and had them work through a labor provider because of their Union activities. ( Id.) The conduct involved the owner, vice president of operations, the general superintendent, and three supervisors. The conduct is serious and occurred over an extended period of time, culminating in the discharge of the remaining bargaining unit employees. The ALJ further found that the Company engaged in illegal election tactics, giving pay raises designed to influence employees' votes in the election and failing to comply with election notice requirements. ( Id. at 24-25.) The ALJ's decision reveals that the Director has a far better than negligible chance of prevailing on the merits of the unfair labor practices alleged in the consolidated complaint.
Moreover, for purposes of the petition for injunctive relief, the Company treats the facts found in the ALJ's decision as established and uncontested. (Suppl. Br. Resp't at 1-2.) Thus, it effectively concedes that it engaged in the unfair labor practices and election misconduct as found by the ALJ.
Though it could be argued that the Company treats as uncontested only those facts found by the ALJ and which the Company considers favorable to its position ( see id. at 2-3), the Company's supplemental brief unequivocally states that there are only two issues remaining before the court, and neither of those is whether the Director has a likelihood of success on the merits, ( see id. at 1-2.) Also, the amicus curiae's reply brief asserts that the Company has conceded the commission of multiple unfair labor practices and election misconduct as found by the ALJ, and the Company has not disputed this assertion, which one might expect to happen if it disagreed with this characterization.
For all these reasons, the court concludes that the Director has shown a far better than negligible and, indeed, strong, chance of prevailing on the merits of his consolidated complaint against the Company. Because the Director's chances of success are strong, he has a lesser burden of establishing that the balance of harms weigh in his favor. See, e.g., Bloedorn, 276 F.3d at 286-87.
B. Irreparable Harm and Balancing of Harms
The next question is whether the labor effort will suffer irreparable harm absent section 10(j) relief. See N.L.R.B. v. Electro-Voice, Inc., 83 F.3d 1559, 1572 (7th Cir. 1996), cert. denied, 519 U.S. 1055 (1997). It seems that the irreparable harm and no adequate remedy at law inquiries collapse into one for purposes of reviewing a section 10(j) petition. See Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 288 (7th Cir. 2001); Electro-Voice, 83 F.3d at 1572-73. Even if these should be treated as two independent inquiries, the court believes that a finding of irreparable harm encompasses the conclusion that a damages award would be "seriously deficient."
The Director contends that irreparable harm arises from the threatened frustration of the remedial purposes of the Act and the public interest in deterring continued violations. More specifically, the Director points to the Union's difficulties in maintaining its presence as well as employee enthusiasm and support at the Company, the danger that the discriminatorily discharged employees will scatter such that a final Board order will not be effective in reconstituting the bargaining unit or Union support base, the chilling effect on the Union organizational effort caused by the discharge of known Union supporters, and the effects to the discharged employees who are working as temporary employees for All Trades, including the loss of benefits which may have been achieved by Union representation. The court concludes that these effects of the passage of time will irreparably harm the labor effort and the employees. These effects also demonstrate that there is no adequate remedy at law.
In Electro-Voice, where it was alleged that the employer discharged union supporters, the petitioner argued that irreparable harm resulted from the chilling effect on the union effort and the loss to employees of the collective bargaining in the interim. 83 F.3d at 1572. The Seventh Circuit agreed that irreparable harm and no adequate remedy at law had been demonstrated:
As time passes the likelihood of union formation diminishes, and the likelihood that the employees will be irreparably deprived of union representation increases. The "dischargees" will seek, and obtain, new employment. Their search may require them to move, or may lead them to a preferable job. Meanwhile, the employees remaining at the plant know what happened to the terminated employees, and fear that it will happen to them. The union's position in the plant may deteriorate to the point that effective organization and representation is no longer possible. 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. That loss, combined with the likelihood that the Board's ability to rectify the harm is diminishing with time, equals a sufficient demonstration of irreparable harm to the collective bargaining process. For the same reasons we conclude that there is no adequate remedy at law.Electro-Voice, 83 F.3d at 1573.
The Seventh Circuit reiterated this conclusion in Bloedorn, where it determined that a final Board order requiring the defendant to "reinstate" the employees it refused to hire in violation of the Act could not fully remedy the harms which would occur in the interim. Bloedorn, 276 F.3d at 299. The court observed that: "the rejected employees are moving on to other jobs; as additional time passes, the likelihood that they will be interested in or able to accept a position with [the defendant] lessens," the passage of time would decrease the Union's ability to organize and provide effective representation, and a final bargaining order could not "fully compensate the employees of [the defendant] for the variety of benefits that good-faith collective bargaining with the Union might otherwise have secured for them in the present." Id.
All these circumstances which established irreparable harm and no adequate remedy at law in Electro-Voice and Bloedorn are present in this case as well. The Company laid of members of the Union organizing committee and then discharged the remaining members of the bargaining unit. This can only chill employees' enthusiasm and support for the Union and diminished the Union presence at the Company as intended. See, e.g., Electro-Voice, 83 F.3d at 1573; Blyer ex rel. N.L.R.B. v. P W Elec., Inc., 141 F. Supp. 2d 326, 330 (E.D.N.Y. 2001) (reinstatement of three key union supporters in a bargaining unit of fifteen necessary because of risk that their discharge would chill if not destroy the union's organizational efforts). And, the evidence does demonstrate that Union support is waning. ( See Dunbar Aff. ¶¶ 3-4 (recounting that the Union had fairly strong support after the September 2002 election, but following the mass layoff in March 2003 and as time passed, it has become more difficult for Dunbar to speak with the discharged employees working on the Company's projects through All Trades)). The passing of time hinders the Union's efforts to organize and ability to provide effective representation to the employees. ( See Dunbar Aff. ¶¶ 3, 6.) Moreover, there is evidence that the discharged employees are moving on to other jobs, and with the passage of time, they are less likely to return to their positions with the Company. ( See id. at ¶ 4 (only a few of the discharged employees still work through All Trades on the Company's jobsites)). Meanwhile, the discharged employees are left without the benefits of representation and bargaining. Prospective relief of a final Board order cannot fully compensate them for benefits that they might have obtained in the interim through the election and bargaining. The court concludes that the Director has shown that the effects of the passage of time will frustrate the Board's ability to provide a full remedy and irreparably harms the labor effort and bargaining unit employees.
The Company, however, contends that the Board's delay in seeking injunctive relief shows the lack of irreparable harm and that interim relief is not just and proper. Delay alone is not a sufficient reason to deny section 10(j) relief. See, e.g., Sharp v. Webco Indus., Inc., 225 F.3d 1130, 1135-36 (10th Cir. 2000) (seven month delay between union's filing of unfair labor charge and Board's filing of section 10(j) petition); Hirsch v. Dorsey Trailers, Inc., 147 F.3d 243, 248 (3d Cir. 1998) (14 month delay between union's request that the Board seek a section 10(j) injunction and the filing of petition with court); cf. N.L.R.B. v. P*I*E Nationwide, Inc., 894 F.2d 887 (7th Cir. 1990) (delay must be accompanied by harm to justify denial of Board's request for enforcement of Board order on equitable grounds). Delay is significant only if "the harm has occurred and the parties cannot be returned to the status quo or if the Board's final order is likely to be as effective as an order for interim relief." Sharp, 225 F.3d at 1136.
The Director claims that he appropriately waited for the administrative record, to assure the strength of his evidence, before seeking section 10(j) relief. A similar explanation has been accepted regarding a delay in seeking interim relief. See Hirsch v. Konig, 895 F. Supp. 688, 697 (D.N.J. 1995) (accepting Board's explanation for its 11 month delay in seeking injunctive relief including that it was waiting for the ALJ's decision which could obviate the need for legal action and provide a comprehensive factual compilation for future action). The court agrees that this is a reasonable explanation here as well. The Board needed a reasonable amount of time to investigate, deliberate and authorize the filing of a section 10(j) petition. See Sharp, 225 F.3d at 1136. Furthermore, some of the delay is attributable to the Company's efforts at resisting the Region's investigation and the unavailability of the Company's counsel for the administrative hearing. Though some harm already has occurred in this case, the harm continues to occur with the passage of time. Because the parties can be returned to the status quo and the Board's final order is not likely to be as effective as interim relief, the delay in this case does not warrant the denial of interim relief.
The court, too, needs a reasonable amount of time to give due consideration to the matters before it and make a reasoned decision, even when consideration of an action is expedited as was this, pursuant to 28 U.S.C. § 1657.
The "status quo" is that which existed prior to the alleged unfair labor practices, not the status quo which resulted from those labor practices. See Electro-Voice, 83 F.3d at 1574-75.
The Company claims that it is threatened by various harms if injunctive relief is granted. (Resp't's Br. Opp'n at 6.) However, it has not supported its claim with any evidence of such harms. While the court may accept without proof that the Company may be harmed by an order of reinstatement, without proof of the extent of such harm, any delay by the Board in seeking injunctive relief is no grounds for denying such relief. Anyway, because the Director has made a very strong showing of likely success on the merits, he has a relatively light burden of proving that the balance of harms weighs in his favor. See, e.g., Electro-Voice, 83 F.3d at 1568. The court concludes that the Director has carried this burden, particularly where the Company offers no evidence of the extent of its claimed harms.
It is difficult to see how the Company would be irreparably harmed by an order restraining and enjoining it from violating the Act and requiring rescission of rules which violate the Act. It is also difficult to discern how irreparable harm arises from the requirement that the Company post notice of the court's decision and injunction and prepare an affidavit attesting to compliance. The court believes that the posting of its decision and injunction will ease the chill on the employees' exercise of their rights by reassuring them that their rights under the Act are being and will be protected.
The court has considered the authority upon which the Company relies and finds it distinguishable. In Mack, for and on Behalf of N.L.R.B. v. Air Express International, 471 F. Supp. 1119 (N.D. Ga. 1979), the court declined to order the interim reinstatement of five employees after weighing the potential effect to the employees who would be displaced by the reinstated employees against the effect on union organizational efforts. The respondent had offered evidence that it had a full complement of workers, and though the court found reasonable cause to believe that unfair labor practices were committed, no decision had been issued by the ALJ at the time of the court's ruling. Id. at 1122, 1125. In contrast, here, although the Company asserts that other employees (the All Trades employees) would be harmed, it has offered no evidence that those employees or any current employees would be harmed. Also, the ALJ has issued a decision, which bolsters the conclusion that the Director has a strong likelihood of success on the merits, in contrast with Mack where the claims were described as speculative. Siegal v. Marina City Co., 428 F. Supp. 1090 (C.D. Cal. 1977), is distinguishable on several grounds, including that the court found no reasonable cause to believe the defendant engaged in the alleged unfair labor practices. Id. at 1093. Finally, in NLRB v. Thill Inc., 980 F.2d 1137 (1992), the court described the violations as "tepid" and the Board offered no explanation for the considerable delay (seven years) in seeking judicial enforcement of its bargaining order. Id. at 1143. Here the claimed violations are anything but tepid and a much shorter delay has been explained.
C. Public Interest
Lastly, the Director must demonstrate that section 10(j) relief is in the public interest. The Seventh Circuit has said that the public interest "is placed in jeopardy when the protracted nature of Board proceedings threatens to circumscribe the Board's ability to fully remediate unfair labor practices." Bloedorn v. Fransisco Foods, Inc., 276 F.3d 270, 300 (7th Cir. 2001) (quotation omitted); see also N.L.R.B. v. Electro-Voice, Inc., 83 F.3d 1559, 1572 (7th Cir. 1996) ("The public interest is furthered, in part, by ensuring that an unfair labor practice will not succeed because the Board takes too long to investigate and adjudicate the charge.") (quotation omitted), cert. denied, 519 U.S. 1055 (1997). As discussed, the Director has shown a strong likelihood of success on the merits and that the passage of time will frustrate the Board's ability to fully remedy the charged unfair, pervasive and egregious labor practices. As each day passes, it becomes even less likely that a final Board order could provide a full remedy. Interim relief will make it more likely that the Board can provide a fuller remedy. Thus, the court concludes that injunctive relief is in the public interest.
D. Other Matters
An evidentiary hearing is inappropriate in this case inasmuch as all parties are in agreement that such a hearing is unnecessary and the record is sufficient to allow the court to decide the issues before it without additional evidence. ( See Pet'r's Suppl. Memo. Supp. Pet. Inj. at 9; Resp't's Suppl. Br. at 2; Reply Br. Amicus Curiae at 2 n. 2.)
The requests for oral argument are DENIED as oral argument unnecessary in assisting the determination of the matters before it.
III. CONCLUSION
The court concludes that the Director has a "better than negligible," and, indeed, strong chance of prevailing on the merits of his charges against the Company, the unfair labor practices threaten irreparable harm to the labor organizational effort which outweighs the harm that interim relief poses to the Company, and that interim relief is in the public interest. Therefore, the court determines that the requested section 10(j) relief is just and proper. "[T]ime works on the side of the employer-perpetrator to help him achieve his illegal purpose. Such a result is not contemplated by the Act." N.L.R.B. v. Elector-Voice, Inc., 83 F.3d 1559, 1573 (7th Cir. 1996).
The Motion of the National Labor Relations Board to Try the Petition for Injunction under section 10(j) on the Record Made Before an Administrative Law Judge is GRANTED in that the court makes its decision on the petition for injunction based upon the administrative record as supplemented by the evidence submitted by the parties in the supplemental briefs; and the Petition for Injunction is GRANTED. All requests for oral argument are DENIED as oral argument was unnecessary to aid the court's decision. An order granting an injunction will issue separately.
ALL OF WHICH IS ENTERED.