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Barker v. Industrial Hard Chrome Ltd.

January 18, 2007


The opinion of the court was delivered by: Judge Virginia M. Kendall


Petitioner Regional Director of Region 13 for the National Labor Relations Board ("Petitioner") seeks injunctive relief pursuant to 29 U.S.C. § 160(j) ("10(j)")*fn1 against Industrial Hard Chrome, Ltd. and its affiliates ("Respondent") for reinstatement of discharged employees pending the resolution of a charge currently before the National Labor Relations Board (the "Board"). Because Petitioner has failed to show by a preponderance of the evidence that it has been irreparably harmed, two required elements for a preliminary injunction pursuant to § 160(j), Petition's request for preliminary injunction is denied.

Statement of Facts

On July 6, 2006, the United Steelworkers of America, AFL-CIO, CLC (the "Union") filed a charge with the Board concerning an incident among the second-shift Union employees at Respondent's Industrial Hard Chrome ("IHC") plant, which incident also affected employees at Respondent's neighboring Bar Technologies, Inc. ("Bar Tech") plant. In the week of October 10, 2006, an Administrative Law Judge ("ALJ") heard argument and testimony concerning the charge. On October 10, 2006, after receiving approval from the Board to file the petition, Petitioner sought injunctive relief from this Court pending the ALJ's decision. The Court permitted limited discovery on the issues that merit injunctive relief, accepted briefing and then held a hearing on January 8, 2007 with testimony from the parties and cross-examination to establish or refute whether an injunction in this matter would be "just and proper." The following facts are drawn from the transcript and exhibits from the hearing before the ALJ, submitted to this Court by agreement of the parties, ("Admin. Tr." and "Admin. Ex.") as well as the testimony before this Court at the preliminary injunction hearing on January 8, 2007 (the "Hearing").

In March/April 2005, the employees of Respondent elected to have the Union be their exclusive bargaining agent. (Admin. Tr. at 109). Over the course of the following year, Respondent and Union representatives, including three employees of Respondent on the Union's bargaining committee, negotiated to establish the initial Collective Bargaining Agreement ("CBA"). As of June 2006, negotiations for the initial CBA were ongoing and the two sides had met approximately forty times, but no CBA had been completed and signed.

The three employees of Respondent on the Bargaining Committee were Paris Figueroa ("Figueroa"), an employee of IHC, Jesus Salgado ("Salgado"), an employee of Bar Tech, and Steven Swanson, ("Swanson"). The other members of the Union's bargaining committee were Alfonso Martinez ("Martinez") and Mark Trone ("Trone"), the Union representatives. Figueroa and Salgado are bilingual in Spanish and English; the other members of the Union's bargaining committee speak only English. Between sixty and seventy percent of Respondent's employees are native Spanish speakers and know little or no English.

On June 23, 2006, a Friday evening, the second shift workers had a break period between 9 p.m. and 9:15 p.m. IHC used a buzzer to signal the commencement of shifts, as well as the commencement and end of fifteen-minute breaks. About two minutes before the buzzer sounded to commence the break, the employees began walking to the lunch area. (Admin. Tr. at 57). Daniel Bustamante ("Bustamante"), an employee of IHC management who, according to testimony at the Hearing, had transferred to supervising the second shift approximately two weeks earlier, orally reprimanded the employees for taking a few additional minutes before and after their breaks. (Admin. Tr. at 57-58, 140).

On June 26, 2006, a Monday, the second-shift employees at IHC found a "warning" posted on the memo board concerning the employees' failure the previous Friday to adhere to the break times set by the buzzer. (Admin. Tr. at 21-22, 109-111). Figueroa, one of the second-shift employees, orally translated the English warning into Spanish for the benefit of the other employees. (Admin. Tr. at 21-22). Some of the employees gathered by Bustamante's desk and asked to speak with Bustamante's manager, Bruce Busse ("Busse"). Bustamante agreed to allow the group to speak with Busse, went to Busse's office, and Busse came to the workspace. (Admin. Tr. at 113). Busse spoke with the employees and told them that they needed to respect the buzzer. (Admin. Tr. at 25-26, 113). Figueroa responded on behalf of the employees that Bustamante had enforced the break-time rule arbitrarily. (Admin. Tr. at 113). Busse agreed to remove the warnings and told the employees to return to work. (Admin. Tr. at 27, 115).

The following day, June 27, 2006, on the way into work for the second shift, Figueroa testified that Daniel Bustamante argued with employee Heraclio Arizaga ("Arizaga"). (Admin Tr. at 28). Figueroa could not see who initiated the argument. (Admin. Tr. at 28, 32). Arizaga testified that, as he was passing Bustamante's desk at the start of his shift, Bustamante called him a "cry baby" in Spanish, and then proceeded to shout that Arizaga knew why he deserved to be called a cry-baby. (Admin. Tr. at 117-19). Figueroa testified that Bustamante and Arizaga were very close to one another and shouting, although he could not hear the subject; Arizaga testified that Bustamante actually touched Arizaga's chest with his own, and came close enough to him that Bustamante's saliva hit Arizaga's face. (Admin. Tr. at 31, 78, 117-19). Bustamante told Arizaga in front of the second-shift workers that Arizaga would be fired. (Admin. Tr. at 31, 148). Bustamante did not fire Arizaga at that time. (Admin. Tr. at 148-49). Figueroa tried to intervene and suggest that the dispute be discussed privately. (Admin. Tr. at 36). Bustamante also told all the second-shift employees that he could/would fire any "buey" who did not return to work. "Buey" is a Spanish term generally used in a derogatory manner and which Arizaga took as derogatory. (Admin. Tr. at 37, 119-20).

After conversation among the employees who witnessed the argument between Arizaga and Bustamante, certain of the employees of the second shift demanded to speak with Busse, and then collectively walked off the job in protest of Bustamante's behavior toward Arizaga. (Admin. Tr. at 37-38, 79, 120-22). According to Figueroa, between 16 and 18 employees left the plant and waited at the picnic tables outside the plant. (Admin Tr. at 39). Another employee, Phanvilay ("Hit") Sundera, took Bustamante into one of the offices to speak with him; when Bustamante returned, he told the employees that they had five minutes to return to work. The employees refused. (Admin. Tr. at 122-23, 158, 242-45). Instead, the employees asked to speak to higher management about Bustamante's conduct. (Admin. Tr. at 155-56). It is not clear whether the employees walked out to the picnic tables before or after Hit Sundera spoke with Bustamante.

While at the picnic tables, Figueroa called Martinez and the police regarding the incident between Arizaga and Bustamante. (Admin. Tr. at 43). Figueroa then went to Bar Tech and spoke with Salgado, whereupon approximately 12-14 members of Bar Tech walked out and joined the IHC employees at the tables. (Admin. Tr. at 44-45, 129, 178-79). There were approximately 22-25 employees of the two companies out at the tables; slightly less than half of these employees were from Bar Tech. (Admin. Tr. at 50, 130, 176).

Two police officers arrived and began to take a report from Arizaga. (Admin. Tr. at 48-49). While taking the report, IHC General Manager Fred Parker ("Parker") came out of the plant. (Admin. Tr. at 49). Parker informed the officers that this was a work stoppage, and then asked the employees if they would return to work; the employees did not answer Parker. (Admin. Tr. at 50).

Parker then addressed his question specifically to Figueroa, who answered that he would return to work, but was waiting for Martinez to arrive. (Admin. Tr. at 50, 133). According to Figueroa, Parker answered that Figueroa "had no Union Representative" and told him he was fired. (Admin. Tr. at 51, 133). According to both Figueroa and the police officer, the officer then told Figueroa to leave the premises, and told the employees at the tables that if they didn't work at the plant they needed to leave as well. (Admin. Tr. at 52, 151-52, 268). Salgado testified that the officers told all the employees that they needed to leave the premises because they were not allowed to be on the property. (Admin. Tr. at 187). Salgado also testified, however, that he and the other employees "chose" not to return to work "because he [Parker] was firing our union representative." (Admin. Tr. at 218). The police officer testified that after the other employees left, Arizaga changed his account of the confrontation with Bustamante and denied that there had been any physical contact. Arizaga did not press charges for the battery. (Admin. Tr. at 272-73).

The following morning, June 28, 2006, the second shift employees who had not returned to work the night before contacted the first shift (daytime) employees as they were entering the plants, and members of both shifts protested the termination. (Admin. Tr. at 54-55, 137). About 60 employees were present and carried signs. (Admin. Tr. at 84, 351). Martinez testified that, when he spoke with manager Petersen on the morning of June 28, Petersen conveyed to Martinez that all of the second-shift employees had been fired. (Admin. Tr. at 352). The employees continued to picket on June 29, 2006 (Admin. Tr. at 195). On June 30, each of the second-shift employees that had left the premises on June 27 received a letter from IHC or Bar Tech stating that there was a rumor that several second-shift employees had been fired, but that in fact only one person had been fired. Salgado testified that he "understood that [the letter] says rumor. But the feeling that moment I was fired." (Admin. Tr. at 232, Resp. Admin. Ex. 40). But Salgado also admitted that he understood the "one person" actually fired to be Figueroa. (Admin. Tr. at 232).

Over the next several days, some first-shift employees crossed the picket lines and returned to work. On July 6, 2006, the Union filed the charge with the Board. On July 31, 2006, Respondent sent a letter to each of the second shift employees who had not returned to work, stating that they had been terminated for continuing absence or an illegal strike. On August 18, 2006, the Union filed a Complaint with the Board seeking preliminary reinstatement of the terminated employees pursuant to Section 10(j), whereupon the Union called off the protest in front of Respondent's plant. (Admin. Pet. Ex. 1(g)). The remaining protesting first-shift employees returned to work at that time.

At the Hearing, Trone testified that between the date of the filing of the Board charge and the present, the Union and Respondent continued negotiations toward an initial CBA. Between August and December 2006, the parties engaged in approximately ten collective bargaining sessions, approximately seven of which were attended by terminated bargaining committee members Figueroa and Salgado. Starting December 6, 2006, Respondent objected at the start of the collective bargaining session to the presence of Figueroa, who had at that point taken employment with a different employer; Respondent based its objection to Figueroa's presence on confidentiality grounds. Figueroa left the session, after which the Union and Respondent continued bargaining. At the last meeting, December 20, 2006, Respondent refused to ...

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