The opinion of the court was delivered by: DIAMOND
This is an action on a petition brought by the Regional Director for Region Six of the National Labor Relations Board ("Board") pursuant to Section 10(j) of the National Labor Relations Act ("Act"), 29 U.S.C. § 160(j), seeking preliminary injunctive relief pending the final disposition of unfair labor practice charges currently before the Board. For the reasons set forth below, the petition will be granted in part and denied in part.
Section 10(j) of the Act provides:
(j) The Board 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 Board such temporary relief or restraining order as it deems just and proper.
On July 7, 1987, the United Steelworkers of America, AFL-CIO-CLC ("Union") filed charges with the Board alleging that the respondent companies have engaged in, and are engaging in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act. Based upon these charges, the Regional Director for the Board's Sixth Region, through the Board's General Counsel, issued a complaint and amended complaint pursuant to Section 10(b) of the Act alleging that the respondent companies have engaged in, and are engaging in, unfair labor practices in violation of Section 8(a) (1) and (3) of the Act.
On December 22, 1987, the petitioner filed a petition with this court seeking a temporary restraining order and injunction against the respondent companies. After the respondent companies were given notice of the petition via the service of an order to show cause why a temporary injunction should not issue, this court issued a temporary restraining order enjoining the respondent companies from selling off or dissipating their assets without first putting aside $ 48,000 to cover any potential backpay liability relating to the proceedings before the Board. This temporary restraining order was extended by consent to January 15, 1988, when a hearing was held before this court on the issues raised by the complaint and petition. At the conclusion of this hearing, the temporary restraining order was extended by consent until February 3, 1988, to provide the parties with additional time to brief the issues and provide this court with a reasonable time for decision. On February 3, 1988, the temporary restraining order was again extended by oral consent of the parties until February 4, 1988.
In support of the issuance of preliminary injunctive relief, the Regional Director makes three claims. First, he asserts that the respondent companies Menard Fiberglass Products, Inc., Penn Lumber Company, Inc., and Barrett Land Company, Inc., are affiliated businesses holding themselves out as a single integrated business enterprise, and as such, a single employer within the meaning of the Act. The Regional Director next asserts that there is "reasonable cause" to believe that the respondents have been violating and continue to violate Section 8(a) (1) and (3) of the Act, which prohibits an employer from interfering with or discriminating against employees in the exercise of their rights under the Act to form, join, or assist labor organizations. 29 U.S.C. § 158(a) (1) and (3). In light of this "reasonable cause," the Regional Director believes it is "just and proper" that this court grant injunctive relief in the form of an order (1) enjoining and restraining the respondents from selling, transferring or otherwise dissipating any of respondents' assets unless and until they first set aside and retain the sum of $ 48,000 to protect any potential backpay awards created by their alleged unfair labor practices; (2) reinstating two of Penn Lumber Company's employees; and (3) that Penn Lumber Company and Menard Fiberglass Products establish preferential hiring lists regarding those Menard Fiberglass employees improperly discharged.
The respondent companies argue that they do not constitute a single integrated business enterprise and are not a single employer within the meaning of the Act. They further argue that the Regional Director lacks "reasonable cause" to believe that they are violating the Act. Finally, they argue that even if the court finds reasonable cause to believe that they are violating the Act, the type of relief sought by the Petitioner is not "just and proper" in the present case.
Based upon the complaint and petition, the testimony of Roger O. Menard, Sr., at the January 15, 1988, hearing before this court, and the exhibits of the parties including the transcript of proceedings before the Board, the court makes the following findings of fact and conclusions of law.
There is, and petitioner has reasonable cause to believe that:
1. Respondent Menard Fiberglass Products ("Menard Fiberglass") is, and has been at all material times herein, a Pennsylvania corporation with its office and place of business in East Clearfield, Pennsylvania, where it is engaged in the manufacture and non-retail sale of pleasure boats. (Petitioner's Proposed Findings of Fact ("PPFF") No. 6(a)).
During the twelve-month period ending June 30, 1987, Menard Fiberglass has engaged in interstate commerce within the meaning of the Act. (Respondents' Proposed Findings of Fact ("RPFF") No. 6(c)).
2. Respondent Penn Lumber Company ("Penn Lumber") is, and has been at all material times herein, a Pennsylvania corporation with its office and place of business in East Clearfield, Pennsylvania, where it is engaged in the manufacture and non-retail sale of wooden pallets. (PPFF 6(b)). During the twelve-month period ending June 30, 1987, Penn Lumber has engaged in interstate commerce within the meaning of the Act. (RPFF 6(d)).
3. Respondent Barrett Land Company ("Barrett Land") is, and has been at all material times herein, a Pennsylvania corporation with its office and place of business located in East Clearfield, Pennsylvania, where it is engaged as a real estate holding company, owning the building and land in East Clearfield, Pennsylvania, where Menard Fiberglass and Penn Lumber operate their business. (R. 548
4. Roger O. Menard, Sr., is the President of all three respondent companies. ("Menard testimony").
As President, Mr. Menard handles all labor relations relating to the three respondent companies and supervises the employees of Menard Fiberglass and Penn Lumber. (Id.). Respondent Barrett Land apparently does not have any employees. (Id.).
5. In addition to handling all labor relations, Mr. Menard generally runs the operations of the respondent companies and decides which equipment both Menard Fiberglass and Penn Lumber should purchase. (Id.).
6. In addition to Mr. Menard as President, the three other officers of the respondent companies are identical. (Id.). These four individuals also own the three companies with each officer, including Mr. Menard, owning twenty-five percent of each company. (Id.).
7. The three respondent companies also have the same board of directors. (Id.).
8. The boards meet and discuss the business of all three companies at the same time in the same place. (Id.).
9. The minutes of the board meetings of all three respondent companies are consolidated and typed up on a single sheet of paper by a Menard Fiberglass employee so as to save money. (Id.).
10. No-interest loans have been made between the respondent companies. (Id.).
11. Menard Fiberglass and Penn Lumber rent their work space from Barrett Land. (Id.).
12. Rent is paid to Barrett Land by Menard Fiberglass and Penn Lumber pursuant to lease agreements which Mr. Menard signed on behalf of all three respondent companies. (Id.).
13. Menard Fiberglass and Penn Lumber share the same clerical offices, and the records of all three respondent companies are kept there. (Id.).
14. The computer owned by Menard Fiberglass prints out the payroll records of both Menard Fiberglass and Penn Lumber; however, Penn Lumber does not pay Menard Fiberglass for the use of the computer. (Id.).
15. Barrett Land uses the phone of Menard Fiberglass because Barrett Land does not do enough business to justify the cost of having its own phone. (Id.).
16. Similarly, there is only one utilities meter for all three companies since they could not afford to pay separate meter charges. (Id.).
17. The building in East Clearfield owned by Barrett Land in which Menard Fiberglass and Penn Lumber operate is divided into a lower and upper building. The upper building is shared by both Menard Fiberglass and Penn Lumber, with a wall separating the two operations. (Id.). Seven of the Menard Fiberglass employees worked in the lower building in what is referred to as the lay-up department. (R. 279). The lay-up department prepares the boats for final assembly which takes place in the upper building where the remaining Menard Fiberglass employees work. (R. 56, 62, 287-88).
18. The wall in the upper building which separates Menard Fiberglass from Penn Lumber contains four large doors. (Menard testimony). Occasionally, forklifts carrying pallets from the Penn Lumber side of the upper building are driven through these large doors and through the Menard Fiberglass side to the Menard Fiberglass loading dock. (Id.).
20. Occasionally, the same delivery truck is used by both Menard Fiberglass and Penn Lumber. (Id.).
21. Various employee transfers have occurred between Menard Fiberglass and Penn Lumber. (Id.; R. 63, 133-36, 244-46, 302, 592-94, 684-86, 751-52, 775-76, 814-15, 825-26, 830-32, 838-39).
22. Mr. Menard had called plant-wide meetings attended by both Menard Fiberglass and Penn Lumber employees at which he and his labor consultant, Ray Blankenship, attempted to dissuade the employees from joining the Union. (Menard testimony). This is significant not due to the subject matter of the meeting, but rather due to the fact that Mr. Menard conducted a meeting of both Menard Fiberglass and Penn Lumber employees at the same time in the same place.
23. In addition to Mr. Menard, supervision and management of both Menard Fiberglass and Penn Lumber are handled by Joseph Opaliski, the plant manager of both companies. (R. 136, 140-41, 684, 783, 841-42, 862-63).
24. On June 9, 1987, several Menard Fiberglass employees including Mary Beish began talking about walking out and/or contacting a union because Menard Fiberglass refused to give them a raise while rehiring final assembly supervisor Brenda Pellerite at a high rate of pay. Beish then attempted to contact a union. (R. 36-37, 484-85, 488-89, 493-94, 866-67). Later that day, however, Beish walked arm-in-arm with Mr. Menard who told her that he would take care of her if she "stuck with him." (R. 38-39, 490, 709). After that, Beish told the other employees that she no longer supported the movement because Mr. Menard had told her he would take care of her if she stuck with him. (R. 491, 710).
25. Beish also told Menard Fiberglass employee Jacqueline Laskowsky that Mr. Menard knew what was going on and that she, Beish, was calling the Union back to tell the Union not to bother with the employees. (R. 867-68).
26. Each of the employees who were subsequently laid off by Menard Fiberglass on June 19, 1987, were either actively involved in the discussions with Beish or had voiced their approval of a walkout and/or union in front of Beish. (R. 37, 235, 484, 488-89, 539, 578-79, 705-07).
27. On the following morning, June 10, 1987, Menard Fiberglass plant supervisor Andrea Shamp told the employees at a plant meeting that Beish had been promoted to lay-up supervisor and Pellerite to final assembly supervisor. Shamp also informed the employees that their work performance did not warrant raises. (R. 40-42, 492, 869).
28. After this meeting, Menard Fiberglass employee Mary Cartwright complained to Shamp about her criticism of the work performance. Shamp stated that the criticism was not meant for her or another Menard Fiberglass employee, Elaine Prisk. Cartwright responded that if the criticism was because of the Union, it was Beish who had called both the Union and a local newspaper about the proposed walk-out. (R. 42-44).
29. On June 11, employee Ruth Grattan contacted the Union and set up a meeting for Wednesday, June 16, 1987. (R. 579-80).
30. On June 16, 1987, the day before the Union meeting was to take place, Mr. Menard called a plant meeting for Menard Fiberglass employees at which he admonished the employees for their allegedly poor work performance; said he heard they were talking about a union and did not want to hear anymore about it or else no one would be working; threatened to close or sell the facility if he saw any sign of a union; and claimed he would personally sue any employees participating in a picket line and "bring them down" with him. (R. 44-46, 101-02, 241-42, 263-66, 495-97, 582, 710-11, 869-70).
32. On the evening of June 17, 1987, the Union met with nine employees and all nine signed union cards. (R. 178-188, GCX 14,
GCX 22(a)-(h)). Those nine were Madeline Cartwright, Elaine Prisk, Lorrie Prisk, Ruth Grattan, Willard Maines, Joe Verbitsky, Robert Harnish, and James Kukla of Menard Fiberglass and James Kolbe of Penn Lumber. (GCX 14, 16, 22(a)-(h)). Approximately five more Menard Fiberglass employees signed union cards on the following day, including Patrick Wisor, who was observed by supervisor Pellerite as he filled out the card. (R. 48, 86, 106-07, 315, 583-84, 686-87, 827, 871).
33. On Friday, June 19, eight Menard Fiberglass employees received a note with their paycheck informing them that they were laid off due to the lack of orders. None of these employees had received any advance notice. (R. 52-53, 242, 543). The eight laid off employees were Laskowsky, Cartwright, LeeAnn Jordan, Wisor, Elaine and Lorrie Prisk, Robert Harnish and James Kukla.
(R. 52-53, 242, 322-23, 475, 543, 704, 878).
34. All of these employees had previously signed union cards and were either the known principal Union organizers or closely associated with them. For example, Elaine and Lorrie Prisk, Grattan, Harnish and Jordan normally ate lunch together at work. (R. 54). Supervisor Shamp also knew that Elaine and Lorrie Prisk, Cartwright, Harnish and Laskowsky drove in a carpool together. (R. 54-55, 501-03). Harnish and Kukla worked closely together. (R. 704). In addition the Prisks, Grattan, Cartwright, Harnish and Kukla used their June 19 lunch break to meet concerning the Union. This lunch break meeting was observed by Mr. Menard's son, Roger Menard, Jr., who was seen talking to his father on several occasions after that meeting but before the employees were laid off. (R. 49-52).
35. At the 9:30 A.M. break on June 19, 1987, an employee told supervisor Beish that Harnish had asked her to sign a union card and that she refused. (R. 874-76). As soon as the break was over, Beish left the area and went to the upper building where higher supervisory personnel were stationed. (R. 874-77).
36. The evening after the layoffs on June 19, Jordan called supervisor Shamp and asked why the employees had been laid off. Shamp initially responded that it was due to economics, but later admitted that Mr. Menard had found out about the Union efforts of the employees and who had signed union cards. Shamp admitted that the people who were laid off were the ones Mr. Menard knew had signed union cards. (R. 243-44).
37. After the eight employees were laid off on June 19, Menard Fiberglass transferred at least two Penn Lumber employees to the Menard Fiberglass site to perform some of the work previously performed by the laid off employees. (R. 592-93, 775-76). Menard Fiberglass employees also performed overtime for about two weeks subsequent to the layoffs. (R. 592, RX 18). In addition, Menard Fiberglass hired approximately 15 employees subsequent to the layoffs to perform the work of the laid off employees. (R. 610, 632-34, 662-66, RX 18).
38. In late June or early July, Menard Fiberglass employee Marshall Maines asked Mr. Menard for a raise. Mr. Menard stated that he could not give Maines a raise because "the Union was getting in" and if he gave him a ...