Opinion
CIVIL ACTION No. 12-1934
01-24-2013
M. KATHLEEN MCKINNEY, Petitioner v. CREATIVE VISION RESOURCES, LLC, Respondent
ORDER
Petitioner requested interim injunctive relief against Respondent from this Court pursuant to Section 10(j) of the National Labor Relations Act pending the outcome, and enforcement, of the underlying proceeding, Creative Vision Resources, LLC (15-CA-20067), before Administrative Law Judge Keltner W. Locke. On January 8, 2013, Petitioner hand-delivered a letter informing the Court that Judge Locke had rendered his decision, and enclosed a copy of Judge Locke's decision. Petitioner also hand-delivered a second letter on January 9, 2013, clarifying statements made in the January 8, 2013 letter. Respondent received copies of both letters via e-mail.
Attached to this order as Exhibit A.
Attached to this order as Exhibit B.
Attached to this order as Exhibit C.
Before the Court is Respondent's motion to strike the letters and Judge Locke's decision. Because this matter has been briefed fully, the Court takes the matter under submission and finds that it is ripe for decision.
R. Doc. 21. Respondent also has filed a reply memorandum in support of its motion. See R. Doc.
Respondent argues in its motion to strike that, in sending the aforementioned letters, Petitioner has engaged in improper ex parte communications with the Court. Petitioner has responded, arguing that its actions do not constitute improper ex parte communications. In the alternative, Petitioner offers to resubmit Judge Locke's decision to the Court via a motion to supplement the record.
R. Doc. 22.
The Court has considered the parties' arguments and the law. The Court recognizes Respondent's concerns regarding how Petitioner informed the Court of Judge Locke's decision. Nevertheless, as another U.S. District Court has stated, in a case in which the administrative law judge rendered a decision in the underlying proceeding before the district court could rule on the Section 10(j) petition:
[A] District Court, deciding whether to grant a petition for Section 10(j) injunctive relief, is advised to give deference to the opinions rendered by the ALJ, particularly in regards to the ALJ's findings in relation to the petitioner's likelihood of success on the merits. Lineback v. Spurlino Materials, LLC, 546 F.3d 491, 502-03 (7th Cir. 2008).N.L.R.B. v. Irving Ready-Mix Inc., 780 F.Supp.2d 747, 752 n.1 (N.D. Ind. 2011), aff'd, 653 F.3d 566 (7th Cir. 2011). This Court must give deference to Judge Locke's decision. Petitioner has offered to resubmit Judge Locke's decision via a motion to supplement the record, but the Court finds that is not necessary and will file the decision into the record. The parties shall not construe the Court's order as commenting in any way on the merits of Petitioner's request for Section 10(j) relief.
[T]he ALJ's decision . . . is [ ] relevant to the propriety of section 10(j) relief. Assessing the Director's likelihood of success calls for a predictive judgment about what the Board is likely to do with the case. The ALJ is the Board's first-level decisionmaker. Having presided over the merits hearing, the ALJ's factual and legal determinations supply a useful benchmark against which the Director's prospects of success may be weighed.Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 288, 300-301 (7th Cir. 2001) (holding that the Director had a strong-likelihood of success on the merits, based, in large part, upon the ALJ's decision in favor of the Director).
Accordingly,
IT IS ORDERED that Respondent's motion to strike be and hereby is DENIED.
R. Doc. 21.
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IT IS FURTHER ORDERED that the Clerk of Court shall file Judge Locke's decision, attached to this order as Exhibit B, into the record of the above-captioned matter.
New Orleans, Louisiana, this 24th day of January, 2013.
______________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE