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Claude T. Harrell, Jr., Regional v. Big Ridge

April 30, 2012

CLAUDE T. HARRELL, JR., REGIONAL DIRECTOR OF REGION 14 OF THE NATIONAL LABOR RELATIONS BOARD FOR AND ON BEHALF OF THE NATIONAL LABOR RELATIONS BOARD, PLAINTIFF,
v.
BIG RIDGE, INC., DEFENDANT.



The opinion of the court was delivered by: Murphy, District Judge:

MEMORANDUM AND ORDER

This matter is before the Court on the petition for an injunction pursuant to Section 10(j) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 151 et seq., 29 U.S.C. § 160(j), brought by Plaintiff Claude T. Harrell, Jr., Regional Director of Region 14 of the National Labor Relations Board ("NLRB") for and on behalf of NLRB (Doc. 15). NLRB seeks an injunction against Defendant Big Ridge, Inc. ("Big Ridge"), the operator of the Willow Lake coal mine in Equality, Illinois, prohibiting unfair labor practices by Big Ridge at the Willow Lake mine pending a final decision by NLRB on a complaint by the United Mine Workers of America ("UMWA"), which is participating in this action as amicus curiae, for unfair labor practices at the mine. In particular, NLRB seeks reinstatement of Wade Waller, a former employee of the Willow Lake mine who allegedly was terminated by Big Ridge in retaliation for his organizing activities at the mine on behalf of UMWA. On March 6, 2012, the Court conducted an extensive hearing on NLRB's request for a Section 10(j) injunction at which the Court heard testimony and took evidence; this Order constitutes the Court's findings of fact and conclusions of law with respect to NLRB's request for a Section 10(j) injunction.

Section 10(j) of the NLRA authorizes a district court to enter "just and proper" injunctive relief pending the final disposition of an unfair labor practices claim by NLRB. 29 U.S.C. § 160(j). See also Lineback v. Spurlino Materials, LLC, 546 F.3d 491, 499 (7th Cir. 2008); NLRB v. Regal Health & Rehab Ctr., Inc., 632 F. Supp. 2d 817, 831 (N.D. Ill. 2009). Section 10(j) of the NLRA provides:

The [NLRB] shall have power, upon issuance of a complaint as provided in subsection (b) of this section charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the [NLRB] such temporary relief or restraining order as it deems just and proper. 29 U.S.C. § 160(j). A Section 10(j) decree will terminate by operation of law upon the issuance of NLRB's final decision and order. See Barbour v. Central Cartage, Inc., 583 F.2d 335, 337 (7th Cir. 1978). Like many other forms of preliminary injunctive relief, an injunction issued under the authority of Section 10(j) has been described as an "extraordinary remedy." NLRB v. Electro-Voice, Inc., 83 F.3d 1559, 1566 (7th Cir. 1996) (quoting NLRB v. P*I*E* Nationwide, Inc., 878 F.2d 207, 209 (7th Cir. 1989)); NLRB v. Irving Ready-Mix Inc., 780 F. Supp. 2d 747, 757 (N.D. Ind. 2011). Thus, relief under Section 10(j) 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." Electro-Voice, 83 F.3d at 1566 (quotation omitted). Correspondingly, "[t]he familiar factors that courts reference in weighing the propriety of preliminary injunctive relief in other contexts -- the lack of an adequate remedy at law, the balance of potential harms posed by the denial or grant of interim relief, the public interest, and the petitioner's likelihood of success on the merits of its complaint -- apply to requests for relief pursuant to section 10(j) as well." Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 286 (7th Cir. 2001) (citing Kinney v. Pioneer Press, 881 F.2d 485, 490 & n.3, 493 (7th Cir. 1989)). Thus, NLRB will be entitled to interim relief when: (1) NLRB has no adequate remedy at law; (2) the labor effort would face irreparable harm without interim relief, and the prospect of that harm outweighs any harm posed to the employer by the proposed injunction; (3) "public harm" would occur in the absence of interim relief; and

(4) NLRB has a reasonable likelihood of prevailing on the merits of a complaint. Id. (citing Electro-Voice, 83 F.3d at 1567-68). "The strength of the [NLRB's] case on the merits affects the court's assessment of the relative harms posed by the grant or denial of injunctive relief: the greater the [NLRB's] prospects of prevailing are, the less compelling need be [the agency's] showing of irreparable harm in the absence of an injunction." Id. at 286-87.

"The [NLRB] bears the burden of establishing the first, third, and fourth of the above factors by a preponderance of the evidence." Spurlino Materials, 546 F.3d at 500. See also Electro-Voice, 83 F.3d at 1567. However, as noted above, the strength of the NLRB's case on the merits affects this Court's assessment of the relative harms posed by the grant or denial of injunctive relief. See Spurlino Materials, 546 F.3d at 500 (citing Bloedorn, 276 F.3d at 286-87). As such, the second prong is evaluated on a sliding scale: the better the NLRB's case on the merits, the less compelling need be the showing of irreparable harm in the absence of an injunction, and vice versa. See id. But even with the sliding scale between probability of success on the merits and degree of harm, the petitioner for Section 10(j) relief must surpass the "possibility" threshold into "likelihood" on each prong. Said differently, it must be likely that the petitioner will succeed on the merits and it must be likely that the petitioner will suffer irreparable harm in the absence of an injunction, and the sliding scale does not remove the burden of this likelihood threshold from the petitioner. See Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 22 (2008) ("Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.") (emphasis omitted); Nken v. Holder, 556 U.S. 418, 434-35 (2009) (noting that the "possibility" standard for success on the merits and irreparable harm is too lenient). "Likely" means more than "better than negligible" and "more than a mere possibility of relief." Nken, 556 U.S. at 434 (quotation marks omitted).

Moreover, it is the case that a court considers a request for an injunction under Section 10(j) "with an eye toward the traditional equitable principles." Kinney, 881 F.2d at 490. However, Section 10(j) proceedings differ from ordinary preliminary injunction situations in a fundamental sense. Typically, a motion for a preliminary injunction requires a district court to undertake its own analysis of the moving party's likelihood of success on the merits of its claim. See, e.g., Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 897-902 (7th Cir. 2001); Curtis v. Thompson, 840 F.2d 1291, 1297-99 (7th Cir. 1988). By contrast, in considering the moving party's "likelihood of success" in the Section 10(j) context, "it is not the district court's responsibility . . . to rule on the merits of the [NLRB's] complaint." Bloedorn, 276 F.3d at 287. In fact, "a federal court has no jurisdiction to pass on the merits of the underlying case before the [NLRB]." Electro-Voice, 83 F.3d at 1567. Instead, "deciding the merits of the case is the sole province of the [NLRB]." Spurlino Materials, 546 F.3d at 502. The United States Court of Appeals for the Seventh Circuit has explained that the "court's mission" in a Section 10(j) case "is to determine whether the harm to organizational efforts that will occur while the [NLRB] considers the case is so great as to permit persons violating the Act to accomplish their unlawful objectives, rendering the [NLRB'] remedial powers ineffectual." Electro-Voice, 83 F.3d at 1567. In undertaking that task, "[t]he district judge must assess not only the harm that may go unchecked during the 'notoriously glacial' course of NLRB proceedings . . . , but also the probability that the General Counsel will succeed in convincing the NLRB that someone has in fact violated the labor laws." Kinney, 881 F.2d at 491 (quoting Boire v. International Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 479 F.2d 778, 788 (5th Cir. 1973)). In short, "[a]ssessing the [NLRB's] likelihood of success calls for a predictive judgment about what the [NLRB] is likely to do with the case." Bloedorn, 276 F.3d at 288. The administrative law judge ("ALJ") is "the NLRB's first-level decisionmaker, and, '[h]aving 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.'" Spurlino Materials, 546 F.3d at 503 n.4 (quoting Bloedorn, 276 F.3d at 288).

As the Court explained above, Section 10(j) relief is an extraordinary remedy, reserved for those situations in which the effective enforcement of the NLRA is threatened by the delays inherent in the NLRB dispute-resolution process. See Spurlino Materials, 546 F.3d at 502. The purpose of Section 10(j) is to prevent employers from taking advantage of the "extraordinarily slow" NLRB resolution process to quash union support in the interim. Id. at 500. "Time is usually of the essence . . . , and consequently the relatively slow procedure of [NLRB] hearing and order, followed many months later by an enforcing decree of the circuit court of appeals, falls short of achieving the desired objectives -- the prompt elimination of the obstructions to the free flow of commerce and encouragement of the practice and procedure of free and private collective bargaining." Kinney, 881 F.2d at 488 (citing S. Rep. No. 80-105, 80th Cong., 1st Sess. 8 (1947)). "Hence we have provided that the [NLRB], acting in the public interest and not in vindication of purely private rights, may seek injunctive relief in the case of all types of unfair labor practices and that it shall also seek such relief in the case of strikes and boycotts defined as unfair labor practices." Id. "A court should evaluate the equities through the prism of the underlying purpose of § 10(j), which is to protect the integrity of the collective bargaining process and to preserve the [NLRB's] remedial power while it processes the charge." Lineback v. Printpack, Inc., 979 F. Supp. 831, 847 (S.D. Ind. 1997) (quotation and citation omitted). In assessing the propriety of injunctive relief, consideration must be given to the collective bargaining rights of the employees and what belated relief may mean to the future exercise of those rights. See Bloedorn, 276 F.3d at 297. A court must consider whether, in the absence of the injunctive relief requested by NLRB, the collective bargaining and organizing rights of employees will be irreparably undermined. See Electro-Voice, 83 F.3d at 1567 ("[C]onsidering the aforementioned factors . . . , this Court's mission is to determine whether the harm to organizational efforts that will occur while the [NLRB] considers the case is so great as to permit persons violating the [NLRA] to accomplish their unlawful objectives, rendering the [NLRB's] remedial powers ineffectual."); P*I*E Nationwide, 878 F.2d at 209 (a Section 10(j) injunction should be "granted only in those situations in which effective enforcement of the NLRA is threatened by the delays inherent in the NLRB dispute resolution process."); NLRB v. Graphic Arts Int'l Union (GAIU) Local 277, 513 F.2d 1017, 1021 (7th Cir. 1975) ("Experience under the [NLRA] has demonstrated that by reason of lengthy hearings and litigation enforcing its orders, the [NLRB] has not been able in some instances to correct unfair labor practices until after substantial injury has been done.").

The Court turns at last to the merits of NLRB's request for a Section 10(j) injunction. This calls in turn for the Court to address the facts of the case as they appear from the record. In March 2011, UMWA began an organizing campaign to represent the approximately 440 production and maintenance workers at Big Ridge's Willow Lake coal mine in Equality, Illinois. See Doc. 15-3 (Decision of ALJ Jeffrey Wedekind) at 2. The workers already were represented at that time by the Boilermakers Union, but negotiations for a new contract to replace the existing agreement between Big Ridge and the Boilermakers Union that was due to expire April 15, 2011, were going badly. See id. UMWA's organizing campaign among the workers at the Willow Lake mine was very successful, garnering authorization cards from ninety-three percent of the unit employees, and the Boilermakers Union later disclaimed interest in further representation of the Willow Lake production and maintenance workers when the Boilermakers Union's contract with Big Ridge expired. See id. However, Big Ridge denied UMWA's request on April 7, 2011, for voluntary recognition of UMWA as the Willow Lake employees' collective bargaining representative. See id. Furthermore, Big Ridge proceeded to conduct a vigorous anti-union campaign in response to the petition made by UMWA on April 8, 2011, to NLRB for a secret-ballot election. See id. Big Ridge held a series of group meetings with employees, which included slide shows, films, and presentations by officials from Peabody Energy, Big Ridge's parent company. See id. Big Ridge distributed flyers with employee paychecks, mailed letters and videotapes to employees' homes, and made anti-union stickers available for employees to wear on their hardhats. See id. Also, Big Ridge polled its supervisors about how employees were likely to vote on representation by UMWA, and directed the supervisors to make one-on-one contact with employees to encourage them to vote against UMWA representation. See id.

Despite Big Ridge's aggressive anti-union campaign, UMWA narrowly won the elections conducted on May 19-20, 2011, by a vote of 219-206; of the 425 employees who voted (ninety-seven percent of those eligible), approximately fifty-two percent voted in favor of UMWA representation. See Doc. 15-3 at 2. However, on May 26, 2011, Big Ridge filed timely objections seeking a rerun election based on allegedly improper conduct by UMWA in the run-up to the May 19-20 elections. See id. at 2-3. UMWA responded by filing charges of unfair labor practices against Big Ridge, in particular alleging that Big Ridge had terminated Wade Waller, an employee at the Willow Lake mine and a strong supporter of UMWA, in order to chill union support at the mine. See id. at 3. Waller has approximately twenty-eight years' mining experience and worked as a ram car driver at the Willow Lake mine for over seven years before his discharge by Big Ridge on May 27, 2011. See id.at 4. By all accounts Waller was a good employee, hard-working, experienced, dependable, well-liked, and willing to fill in on his days off. See id. at 48. Although he had a reputation for being loud (as Waller himself admits), he did not have a reputation for being violent. See id. Further, until his discharge, he had never been called into the office or disciplined for even the slightest infraction, safety-related or otherwise, over the entire seven years of his employment at the Willow Lake mine. See id. There is no dispute that Waller actively and openly supported UMWA during and after the union's campaign to represent Willow Lake employees. Waller frequently wore a camouflage UMWA shirt back and forth to work. See id. at 47. He put eight to ten UMWA stickers on his hardhat. See id. He even put one of Big Ridge's "VOTE NO" stickers on his hardhat, covering up half of the sticker so that it read "VOTE UMWA." See id. Waller also distributed at least 100 UMWA stickers to other Willow Lake employees, and wrote and sang a derogatory song at the mine about "scabs" who did not support UMWA. See id. at 47-48.

In short, although many other Willow Lake employees also openly supported UMWA, the record reflects that, in fact, Waller was one of the strongest and most outspoken UMWA supporters at the Willow Lake mine. See id. at 48.

The ostensible reason for Waller's discharge was an alleged threat to kill a fellow employee, Ron Koerner. Big Ridge claimed that Koerner, a feeder watcher, told ram car driver Waller to stop his approach to the feeder, at which time Waller is alleged to have said that Koerner could flag him all he wanted but Waller would not stop. See Doc. 15-3 at 45. In the proceedings before the ALJ, Koerner admitted that neither he nor anyone else was in the path of Waller's ram car when Koerner flagged Waller to stop. See id.at 47. If nobody was in the path of Waller's ram car, then Waller's statement to Koerner was not a credible threat to kill or injure anyone. Koerner also told the ALJ that he never felt his life was in danger and never told Big Ridge that he thought Waller was going to kill him. See id. at 52. Thus, it appears that, at most, Waller disregarded an inexperienced feeder watcher's request to stop dumping coal at the feeder. Said differently, Waller and Koerner simply had a disagreement over whether the feeder was too gobbed up to continue dumping Waller's coal. Koerner "flagged" Waller with his helmet light to stop dumping so the feeder would not get gobbed up, and Waller decided to override him and continue dumping because he did not believe that Koerner, who was new to both the mine and feeder watching, had any idea what he was talking about, and Big Ridge was pushing its crews to get their production numbers up. See id. at 52. As the ALJ recognized, heated, angry arguments and confrontations in which employees threatened to physically injure each other were common at the Willow Lake mine, and were tolerated at the mine. See id.at 48. It is undisputed that, since 2002, when Peabody acquired the Willow Lake mine, Big Ridge had never discharged any other employee for conduct like Waller's, absent any significant physical contact between quarreling employees. See id. at 48-49. In sum, the overwhelming weight of the evidence indicates that Big Ridge never really believed that the May 20 flagging incident was anything more than a routine work dispute, not a credible threat by Waller to run over or kill Koerner. Waller's alleged threat to kill Koerner was simply the way Big Ridge chose to "spin" the incident between Waller and Koerner as a pretext for discharging one of UMWA's strongest and most vocal supporters at the Willow Lake mine, given Big Ridge's history of tolerating similar or worse conduct by others unrelated to union activity.

Significantly, Waller was discharged less than a week after the election, and the very day Big Ridge announced to Willow Lake employees its objections to the election; additionally, Big Ridge informed employees that UMWA's unwanted election victory and Waller's discharge would be tried together at the same administrative hearing, further underscoring the connection between the election and Waller's discharge. The evidence is clear that support for UMWA among Willow Lake employees has been chilled by Big Ridge's vigorous anti-union campaign, including the discharge of Waller. For example, the decline in attendance at UMWA's meetings warrants the inference that support for UMWA has been chilled. Hundreds of Willow Lake employees attended UMWA's first meeting, and subsequent pre-election meetings drew a large attendance as well, according to Greg Fort, a Willow Lake employee and president of UMWA Local No. 5929:

Q. Okay. So the union's organizational meetings before the election -- we were talking about the attendance. You said there were three. Do you recall the levels of attendance at those meetings?

A. Like I said, the first meeting was very high because that's when we signed the cards. The next meetings, we had moved. We've got a classroom beside our office that we hold our meetings in. We set up maximum probably 40. We set up between 30 and 40 chairs for them meetings, and the meetings for -- that we're talking about before, after the first meeting we had to move into a bigger room because we didn't have room for everybody in our little classroom.

Q. How many does that room seat?

A. We set up chairs -- somewhere between 80 to 100 chairs in there. *

Q. Do you have a specific recollection of each of the three meetings before the election?

A. To give you a specific date, I can't. I know we had the March 30th meeting and then we had one before the election in May, but I can't give you a certain date on what day that was.

Q. Were you in attendance for each of those meetings?

A. Unless I was at work. Like I said, we had the 9:30, 12:30 and 5:30 meeting. If I was on day shift, I made the evening meetings. If I was on second shift, I made the morning meetings.

Q. And so the three meetings that were after the March meeting, can you approximate for us the attendance at each of those meetings? Are you able to do that?

A. The best of my estimate, I would say the ones before the election we were probably in the 80 to 100 neighborhood out of all. The morning meeting we had a real good attendance. Usually our noon meetings was just the guys coming in before second shift. That was a smaller meeting. And then our evening meetings was all -- you know, pretty good attendance. So I would estimate it, probably the morning meeting, between 60 to 80; the afternoon meeting, somewhere between 20, 30 guys; and evening meeting, between 60 and 80.

Q. Okay. And that applies, as far as you can recall, to each of the three meetings?

A. Yes, except for the first one, and that was when we signed the cards.

Q. Was there a meeting after the election?

A. Yes. I think the 24th we had a meeting right after the election.

Q. Okay. Do you have a recollection of the attendance at that meeting?

A. It was still a real good turn-out. I would estimate it on the same as the before, maybe a little more. Our morning meeting was a big meeting, the noon meeting was smaller, and the evening meeting was a bigger meeting.

Doc. 48 (Transcript of Hearing on Injunction on March 6, 2012) at 66-68. Thus, according to Fort, even the post-election union meeting, held on May 24, 2011, was about as well attended as previous union meetings. However, attendance at UMWA meetings decreased substantially after Big Ridge announced its objections to the union election and discharged Wade Waller; as will be discussed, attendance ...


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