Sharp ex rel. National Labor Relations Board v. La Siesta Foods, Inc.

859 F. Supp. 1370, 147 L.R.R.M. (BNA) 2617, 1994 U.S. Dist. LEXIS 11166, 1994 WL 413819
CourtDistrict Court, D. Kansas
DecidedJuly 11, 1994
DocketNo. 94-4111-RDR
StatusPublished
Cited by3 cases

This text of 859 F. Supp. 1370 (Sharp ex rel. National Labor Relations Board v. La Siesta Foods, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sharp ex rel. National Labor Relations Board v. La Siesta Foods, Inc., 859 F. Supp. 1370, 147 L.R.R.M. (BNA) 2617, 1994 U.S. Dist. LEXIS 11166, 1994 WL 413819 (D. Kan. 1994).

Opinion

MEMORANDUM AND ORDER

ROGERS, District Judge.

Petitioner F. Rozier Sharp, Regional Director for Region 17 of the National Labor Relations Board (“Regional Director”), for and on behalf of the National Labor Relations Board (NLRB or Board), seeks a temporary injunction pursuant to Section 10(j)1 of the National Labor Relations Act (Act), 29 U.S.C. § 160®, restraining respondent La Siesta Foods, Inc. (La Siesta) from engaging in certain acts and conduct pending final resolution by the Board of certain unfair labor practices charges filed by the petitioner against the respondent. The court has con- • ducted a hearing on the petitioner’s petitioner for temporary injunction and is now prepared to rule. This memorandum and order shall constitute the court’s findings of fact and conclusions of law.

[1372]*1372La Siesta Foods is engaged in the business of producing Mexican food products. The company has a facility located in Topeka, Kansas. In September 1993, Stephanie Oviedo, an employee of La Siesta Foods, contacted Bradford Schmidt, the business representative of the Bakery, Confectionery & Tobacco Workers International Union Local 218 (the union), concerning possible union representation. Schmidt later met with Stephanie and her husband, Andres Oviedo, who was also employed by La Siesta at that time, about union representation. Subsequent meetings occurred and Andres began talking with fellow employees about the union. Many of the meetings occurred at the Oviedo residence and it was generally known that Andres was the leader of the union movement.

The union campaign was apparently a vigorous one with both sides actively engaged. Petitioner has produced affidavits indicating that during the period from December 1993 to March 24, 1994, supervisors and agents of the respondent engaged in conduct which constituted unfair labor practices. This conduct included explicit threats, interrogations, surveillance, solicitation of grievances and disparate enforcement of a no-solicitation rule. On January 6, 1994, Stephanie and Andres Oviedo each received a written warning from the respondent. The warnings indicated that each one had violated the company’s no-solieitation rule by distributing union literature on company premises. On February 11, 1994, the union filed a petition for election under the Act seeking to represent a bargaining unit of La Siesta employees. The petition alleged that the union had obtained more than thirty percent of the employees covered in the proposed bargaining unit.

On February 12, 1994, the respondent terminated Andres Oviedo. Andres had received a warning for non-performance and carelessness in his job duties on February 11,1994. Andres’ termination report indicated that he was terminated because he had received four warnings in six months. Company policy provided that an employee may be terminated if he receives three written warnings in a six month period. On February 22, 1994, the union filed a charge with the NLRB alleging unfair labor practices. The charge indicated that the respondent had discharged Andres for his support and activities on behalf of the union. On March 4,1994, Harold Thomas received a counseling notice explaining the company policy on solicitation on company property. Thomas had apparently been seen providing union literature to other employees. On March 16,1994, the union filed another charge with the NLRB alleging unfair labor practices. This charge alleged that the respondent had issued warnings to its employees for their support of the union and had threatened a non-employee union agent with arrest for handbilling.

On March 24, 1994, an election was held based upon the union’s petition to represent production and maintenance employees. The union waived its right to block the election based upon the unfair labor practices. The largest meeting of employees with a union representative had occurred just prior to the election. Of 267 eligible voters, 85 voted in favor of representation by the union and 110 voted against representation. On March 29, 1994, the union filed two additional charges of unfair labor practices with the NLRB. The charges alleged that the respondent had engaged in various unfair labor practices pri- or to the election. This case was filed in this court on June 22, 1994. The parties have agreed that no unfair labor practices have occurred at the respondent’s facility since the election on March 24, 1994.

In the instant petition, petitioner seeks an order asking for the following affirmative relief during the pendency of the Board proceedings: (1) expungement from the employees’ records the written warnings issued to Andres Oviedo, Stephanie Oviedo and Harold Thomas; (2) an offer of interim reinstatement to Andres Oviedo to his former job and expungement from his record of any reference to his discharge; and (3) the posting of copies of the court’s order at the respondent’s facility. In addition, petitioner seeks an order restraining the respondent from engaging in a variety of acts which constitute unfair labor practices under the Act.

Section 10(j) authorizes district courts to grant interim injunctive relief to maintain [1373]*1373the status quo pending the Board’s ultimate resolution of the merits of the underlying unfair labor practices claims. 29 U.S.C. § 160(j). In the interim proceeding, the district court is not expected to decide the merits of the unfair labor practice claims, since that is the Board’s responsibility. To resolve a section 10(j) petition, a district court considers only two issues: (1) whether there is “reasonable cause to believe” that a respondent has violated the Act; and (2) whether temporary injunctive relief is “just and proper.” Angle v. Sacks, 382 F.2d 655, 658-59 (10th Cir.1967).

REASONABLE CAUSE

The “reasonable cause” requirement, unlike the “just and proper” requirement, is not found in the language of section 10(j) of the Act. The “reasonable cause” standard was developed in cases arising under section 10(1) of the Act. The standard, however, has been applied to section 10(j) cases, including the Angle case in the Tenth Circuit.

The respondent has suggested, relying upon Miller v. California Pacific Medical Center, 19 F.3d 449 (9th Cir.1994) (en banc) and Kinney v. Pioneer Press, 881 F.2d 485 (7th Cir.1989), that the reasonable cause standard should be dropped in 10(j) cases. While these cases contain some persuasive arguments for the abandonment of the reasonable cause requirement in 10(j) proceedings, we believe that we are bound by Tenth Circuit precedent. See Angle, 382 F.2d at 658 (“finding of ... reasonable cause is an implicit prerequisite for relief under section 10(j)”). Although Angle is almost thirty years old, we find some support for the continued application of the reasonable cause standard in subsequent Tenth Circuit section 10(j) cases. See, e.g., NLRB v. Acker Industries, Inc., 460 F.2d 649, 652 (10th Cir.1972).

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859 F. Supp. 1370, 147 L.R.R.M. (BNA) 2617, 1994 U.S. Dist. LEXIS 11166, 1994 WL 413819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sharp-ex-rel-national-labor-relations-board-v-la-siesta-foods-inc-ksd-1994.