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HOEBER EX REL. NLRB v. KNZ CONSTR.

March 1, 1995

FRANCIS W. HOEBER, Acting Regional Director of the Fourth Region of the NATIONAL LABOR RELATIONS BOARD, for an on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner
v.
KNZ CONSTRUCTION, INC., Respondent



The opinion of the court was delivered by: WILLIAM H. YOHN, JR.

 Yohn, J.

 March 1, 1995

 I. INTRODUCTION

 The Union filed the original charge of unfair labor practices against KNZ in the first of two cases on March 9, 1994 and in the second on May 20, 1994. On June 30, 1994, it filed an amended charge in the first case, and the same day the Board consolidated the two cases, and issued a complaint and notice of hearing. KNZ filed an answer on July 15, 1994. The Board issued amendments to the consolidated complaint on July 19, and KNZ filed an answer to the amendments on July 26, 1994. An administrative law judge held a hearing on September 26-29, 1994, and issued his decision and recommendation order on February 13, 1995, granting the relief the Board requested. *fn2" The transcript and exhibits of the hearing before the administrative law judge comprise the record in this case. *fn3"

 The NLRA contemplated that at times there would be dual proceedings, as in this case, before the Board, in the form of a hearing before an administrative law judge, and before the district court, in the form of a petition by the Board for interim injunctive relief. The process by which the Board is authorized to hear and determine cases of unfair labor practices under 29 U.S.C. §§ 160(a), (b), and (c) has several steps. After the administrative law judge issues a ruling, the Board must affirm the decision and order. Even then, the Board decision and order are not self-enforcing, and no sanctions attach until the order is enforced after review by the court of appeals under 29 U.S.C. §§ 160(e) and (f). Because such proceedings can be protracted, Congress enacted additional procedures to provide interim injunctive relief and to preserve or restore the status quo pending the final disposition of the charges.

 In this Circuit, a district court may grant interim injunctive relief under section 10(j) of the NLRA where it finds "reasonable cause" to believe an unfair labor practice has occurred and determines that the relief sought is "just and proper." Pascarell v. Vibra Screw, Inc., 904 F.2d 874, 877 (3d Cir. 1990), citing Kobell v. Suburban Lines, 731 F. 1076, 1088-89 (3d Cir. 1984). Under the first prong of this test, in finding there is reasonable cause to believe an unfair labor practice has occurred, the district court does not find that such a practice has, in fact, occurred. Kobell, 731 F.2d at 1083-84; see also Eisenberg v. Wellington Hall Nursing Home, Inc., 651 F.2d 902, 906 (3d Cir. 1981); Eisenberg v. Honeycomb Plastics Corp., No. 86-3438 (D.N.J. January 9, 1987) 1987 WL 109093 at * 3. That question is left for the proceedings before the administrative law judge, where a different, and higher, standard of proof applies. Nor does the district court resolve credibility issues raised by the evidence. Id. at * 3-4. The Board as petitioner has a "relatively insubstantial" burden of proof in the district court proceedings. Kobell, 731 F.2d at 1084. It must merely convince the court that there is reasonable support for its position; it need not convince the court that it is likely to prevail on the merits before the administrative law judge and the Board. Id. at 1078. The Board as petitioner meets this standard as long as (1) its legal theory is "substantial and not frivolous" and (2) there is sufficient evidence to support the theory, viewing contested factual issues favorably to the petitioner. Pascarell, 904 F.2d at 882, citing Kobell, 731 F.2d at 1084.

 The district court's determination that there is reasonable cause to believe something is for purposes of preliminary injunctive relief only and is meant to have no bearing on the administrative determination of the same matters. Similarly, under the second prong of the test, the district court's conclusion that the relief requested under section 10(j) is "just and proper" is also meant to have no bearing on the administrative determination of the same matters. Because what is just and proper in an individual case depends to a great extent on factual determinations, and because the district court makes no findings of fact, but bases its conclusions on what there is reasonable cause to believe, its conclusion that something is or is not just and proper does not rest on the same foundation as a seemingly similar administrative determination in the same case and therefore cannot be relied upon in the administrative determination.

 Relief under section 10(j) is "just and proper," and the district court may therefore grant it, "where the passage of time reasonably necessary to adjudicate the case on its merits convinces both the Board and the federal courts that the failure to grant such relief might dissipate the effective exercise . . . " of the Board's ultimate remedial power. Kobell, 731 F.2d at 1091. Interim relief under section 10(j) is meant to serve the public interest by effectuating the policies of the NLRA and fulfilling the remedial function of the Board; it is not meant to vindicate the private rights of employees. Eisenberg v. Wellington Hall, 651 F.2d at 906-07.

 In this case, respondent does not contest that its conduct meets the low standard applied by this court in determining whether there was reasonable cause to believe it engaged in unfair labor practices. In its brief, it states, "KNZ simply cannot boldly assert that there is an absence of a substantial legal theory or substantial facts to support the Board's theory of violation." Respondent's Brief at 4. Accordingly, respondent has agreed to the injunction with respect to the cease and desist order. At oral argument before the district court on the requested relief, respondent further stated that it does not oppose reinstatement of the two former employees. However, KNZ vigorously opposes the interim bargaining order. Because the respondent has agreed to the order against the unfair labor practices and for reinstatement, the court does not have to enumerate the unfair practices it has reasonable cause to believe were committed to justify granting those forms of relief; however, it must review them for purposes of determining whether an interim bargaining order is just and proper.

 II. WHAT THERE IS REASONABLE CAUSE TO BELIEVE

 The following narrative sets out the factual background the court finds there is reasonable cause to believe.

 In late January, 1994, one of KNZ's employees, Les Schlemback, contacted the Union to begin an organizing drive. Transcript of Proceedings ("Tr.") at 211, 212, 214. Schlemback and another employee, Jay Dallegro, met with a Union organizer at the Union hall on January 26, 1994. Tr. at 28, 212, 381. Thereafter, on February 9, Schlemback invited several of the employees in his unit to his apartment one evening to meet with two Union representatives. Tr. at 28-29, 150, 213-14, 382. The four employees who were at that meeting, Schlemback, Dallegro, Robert Fowler and Joe Bushby, signed Union authorization cards. Later the same night, Dallegro visited two other employees, Mike Wojtecki and Jim Huffner, who also signed authorization cards. Tr. at 29-30, 151-52, 215-16, 382-86. The unit that was the subject of the organizing drive comprised all of KNZ's full-time and regular part-time window fabricators and installers, but excluded all other employees, guards and supervisors as defined in the NLRA. GCX 1(g), P 8(a); GCX 1(k), P 8(a). There were seven such employees, and on February 9, 1994, six of them signed cards authorizing the Union to represent them in collective bargaining. *fn4" One employee, Rich Quering, did not sign an authorization card. Tr. at 9-11, 223.

 The Union authorization card stated:

 
I understand and agree that my execution of this authorization card will enable the Union to secure recognition from my Employer as my sole and exclusive collective bargaining representative, without the need for any election conducted by the National Labor Relations Board, or any other agency. By the execution of this card, I agree that the Union may act as my bargaining representative, and I authorize it to seek recognition from my Employer on the basis of my authorization card.

 GCX 2, 3, 4, 7, 8, 13. After obtaining authorization from a majority of workers in the unit, the Union sent a letter, dated February 14, 1994, to KNZ president Al Nuhn demanding recognition as the exclusive collective bargaining representative of the unit and requesting bargaining. Tr. at 388, GCX 1(g) P 12, 1(k) P 12, GCX 14. KNZ refused and continues to refuse to recognize the Union or to bargain with it. GCX 1(g) P 13, GCX 1(k) P 13, Tr. at 390, 392-93.

 There is reasonable cause to believe that, shortly after it learned of the Union organization drive, respondent engaged in numerous and serious unfair labor practices in violation of the NLRA. Section 7 of the NLRA, 29 U.S.C. § 157, guarantees "the right to self-organization, to form, join, or assist labor organizations to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection . . . ." Section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in their exercise" of their section 7 rights. The test is whether the employer's conduct has a reasonable tendency to coerce; actual coercion is not necessary. NLRB v. Garry Mfg. Co., 630 F.2d 934, 938 (3d Cir. 1980); Hedstrom Co. v. NLRB, 629 F.2d 305 (3d Cir. 1980). Section 8(a)(3), 29 U.S.C. § 158(a)(3) makes it an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment . . . to discourage membership in any labor organization." Section 8(a)(5), 29 U.S.C. § 158(a)(5), makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees, . . ." There is reasonable cause to believe the conduct of respondent violated sections 8(a)(1), (3), and (5) of the NLRA.

 There is reasonable cause to believe that respondent violated section 8(a)(5) of the NLRA, 29 U.S.C. § 158(a)(5) by refusing to recognize or to bargain with it when the Union requested recognition and bargaining after a majority of unit members signed the authorization cards.

 There is reasonable cause to believe that Al Nuhn, president of KNZ, violated the NLRA in numerous ways. On February 18, 1994, Al Nuhn telephoned Schlemback and, in the course of the conversation, interrogated Schlemback about his Union sympathies. Nuhn threatened loss of work, closing the business, declaring bankruptcy and reopening under another name if the employees chose the Union as their collective bargaining representative. He told Schlemback that the organization drive was futile because the company would not "go union" and accused employees who supported the Union of disloyalty to KNZ. Tr. at 224-25, 226, 227, 305, 703, 708, 709, 712. There is reasonable cause to believe that Nuhn's actions were in violation of section 8(a)(1) of the NLRA.

 Nuhn interrogated other employees concerning their Union sympathies and activities and similarly threatened them. GCX 6 p.2., Tr. at 228-29. Nuhn accused Dallegro of stabbing him in the back and promised improved benefits and terms and conditions of employment if Dallegro refrained from supporting the Union. Tr. at 38, 39. On February 25, 1994, a day after learning that another employee, Robert Fowler, was a member of the Union committee, Nuhn directed that Fowler be laid off. Tr. at 161, GCX 17, Tr. at 391-92. At the hearing, respondent contended it had laid off Fowler because of lack of work, but about the time Fowler was discharged, two new employees began work, doing tasks that Fowler had done. Tr. at 492, 565, 566, 766-67. Later, KNZ purportedly recalled Fowler, but offered him only short term work of a week or two at a greatly reduced wage ($ 5.90 per hour instead of $ 32 per hour). Tr. at 163-64. There is reasonable cause to believe Nuhn had Fowler laid off in retaliation when he learned of Fowler's Union activities and that these actions were in violation of sections 8(a)(1) and 8(a)(3) of the NLRA.

 There is reasonable cause to believe that Mark Bekier was a supervisor at KNZ, within the meaning of section 2(11) of the NLRA, 29 U.S.C. § 152(11). The term "supervisor" is defined in the NLRA as follows:

 
The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

 29 U.S.C. § 152(11). Since this section is written in the disjunctive, a supervisor need not engage in all of the enumerated activities; any one will suffice. NLRB v. Berger Transfer and Storage Co., 678 F.2d 679, 687 (7th Cir. 1982); NLRB v. Baja's Place, 733 F.2d 416, 420 (6th Cir. 1984). Bekier has admitted that he had the authority to discipline and reward employees and that he did so. Tr. at 610, 611. There is also reasonable cause to believe he had the authority to adjust employees' grievances, arrange their assignments and work schedules, direct their daily work, and effectively to recommend hiring. Tr. at 60, 124, 125, 156, 235, 274-75, 278, 622.

 In a footnote to its brief, KNZ contends that, if Bekier is a supervisor and is thereby excluded from the collective bargaining unit, so are certain other employees who are "lead employees" or "crew leaders" under the NLRA. Respondent's Brief an 9-10 n.2 If they, too, are supervisors, KNZ contends the court would have to sort out representation issues to determine whether the Union had the support of a majority of the employees who were not supervisors. Id. ; Tr. at 426-29, 433, 440, 449-60.

 There is reasonable cause to believe that every project with two or more workers had a crew leader and that various employees were the designated crew leaders for particular projects, but that only Bekier had responsibility and authority for directing work, arranging schedules, and adjusting grievances that extended beyond single projects. For example, on one occasion, Jay Dallegro complained to president Nuhn about Mark Bekier regularly making employees work extra hours without extra pay, and Nuhn responded, "Don't complain to me, Mark's the boss," referring to Mark Bekier. Tr. at 44. Bekier stated that he and Nuhn made decisions as to job assignments. Tr. at 524-26. Bekier was the person to whom a physician wrote to report to KNZ on his treatment of an injury for which an employee was claiming workers' compensation and on his release of the worker back to the job. GCX 20, 21. Dallegro testified that he called Bekier on Sunday nights to see where he would work next, if he had not been told the week before by his crew leader. Tr. at 96-97. When Les Schlemback was crew leader for a job on which he and another employee were working, Mark Bekier, who was not working on that job, went by the site, checked whether Schlemback was there, and reported back to KNZ vice-president, Debra Zarfoss. Tr. at 535-36. There is reasonable cause to believe that crew leaders were not, by virtue of that fact, supervisors, but that Mark Bekier was a supervisor within the meaning of section 2(11) of the NLRA, 29 U.S.C. § 152(11).

 There is reasonable cause to believe that on February 21-25, 1994, supervisor Mark Bekier engaged in conduct in violation of the NLRA. He disparaged Schlemback in front of other employees because Schlemback supported the Union and said that no one would want to hire them after this and the employees would not make as much money if the employees selected the Union as their collective bargaining representative. Tr. at 48, 49, 236-37, 642. He did not let Schlemback, Dallegro and Fowler do their usual installation work, although there was such work to be done, and he said that Fowler was being assigned to clean up school yards and paint gutters as punishment for wanting to be in the Union. Tr. at 47-48, 156, 235. On February 22, when temperatures were 15-20 degrees Fahrenheit, Bekier assigned Schlemback, Dallegro and Fowler to caulk outside, despite the fact that inspectors had told KNZ they did not want caulking work to be done in such cold weather. Tr. at 49-51, 158-59, 239-40. On February 25, Bekier conveyed Nuhn's message to lay off Fowler, explaining that KNZ could not start any new jobs because of the Union. Tr. at 161. On March 8, 1994, Bekier ...


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