National Labor Relations Board v. Hartman and Tyner, Inc. , 714 F.3d 1244 ( 2013 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14508
________________________
D.C. Docket No. 0:12-mc-60978-WJZ
NATIONAL LABOR RELATIONS BOARD,
Plaintiff - Appellant,
versus
HARTMAN AND TYNER, INC.,
d.b.a. Mardi Gras Casino,
HOLLYWOOD CONCESSIONS, INC.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 16, 2013)
Before MARCUS, BLACK and SILER, * Circuit Judges.
MARCUS, Circuit Judge:
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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The National Labor Relations Board (“NLRB” or the “Board”) appeals from
the district court’s decision to deny the NLRB temporary injunctive relief pending
a final order from the NLRB in administrative proceedings. The underlying labor
dispute involves an administrative complaint filed by the NLRB against Hartman
and Tyner, Inc. d/b/a Mardi Gras Casino, and Hollywood Concessions, Inc.
(“Mardi Gras”). The NLRB claims that Mardi Gras unlawfully discharged
employees who were involved in a union organizing campaign on behalf of
UNITE HERE Local 355 (“the Union”). Under section 10(j) of the National Labor
Relations Act, the NLRB has the power to petition a federal district court “for
appropriate temporary relief or restraining order” pending the resolution of the
administrative proceedings. 29 U.S.C. § 160(j). It did so in this case, and the
primary relief it sought was temporary reinstatement of six of the discharged
employees.
After extensive briefing and an evidentiary hearing, the district court denied
the petition in material part. The district court applied the correct legal standard,
recognizing that interim injunctive relief of this kind should be granted only when
two conditions are satisfied: (1) there is reasonable cause to believe that the alleged
unfair labor practices have occurred, and (2) the requested injunctive relief is just
and proper. See Arlook v. S. Lichtenberg & Co., Inc., 952 F.2d 367, 371 (11th Cir.
1992). At issue on appeal is only the second of these requirements, and we
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conclude, after thorough review, that the district court did not abuse its
considerable discretion in concluding that interim reinstatement of the discharged
employees was not “just and proper.”
I.
Mardi Gras operates a casino and greyhound racetrack in Hallandale Beach,
Florida. The casino employs around 220 employees. 1 In August 2004, Mardi Gras
and the Local 355 entered into a Memorandum of Agreement in which Mardi Gras
committed to take a “neutral approach to unionization.” The specifics of the
agreement are not pertinent to this case, but the gist of the relevant provisions for
present purposes was that Mardi Gras agreed to recognize the Union as a
collective-bargaining representative if a majority of employees signed Union
authorization cards, and the Union in turn agreed not to engage in organizing
efforts in the casino’s public areas or during the employees’ working times. See
generally Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1284-85 (11th Cir.
2010) (describing the Memorandum of Agreement).
The Memorandum of Agreement was set to expire on December 31, 2011, 2
and the workforce at Mardi Gras remained non-unionized. Although there had
been intermittent organizing efforts in the past, the Union, faced with this deadline,
1
Mardi Gras claims there are actually 339 employees, but accepts the 220 number for purposes
of this case.
2
Mardi Gras claims the Memorandum of Agreement actually expired October 24, 2011, but,
again, accepts the December 31 expiration date for purposes of this case.
3
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mounted a full campaign in the Fall of 2011 to organize the Mardi Gras workforce.
Pursuant to the Memorandum of Agreement, the Union obtained a list of
employees from Mardi Gras and began visiting them at home. By October 2011,
the Union had assembled an employee organizing committee that consisted of
around 20 Mardi Gras employees, who then visited the coworkers in their
respective departments to try and get them to sign the Union authorization cards.
Many of the employees were visited multiple times.
The organizing campaign had some initial success, but, as of the date of the
district court’s ruling, the Union had only obtained 92 authorization cards, a fair bit
short of forming a majority of the 220 employees in the bargaining unit. The dates
the cards were returned matter in relation to the employee discharges at issue. The
undisputed evidence shows that almost all of the authorization cards -- 80 of the 92
-- were returned by November 10, 2011, over a week prior to the first of the
discharges on November 18. An additional four cards were returned between
November 13 and November 15.
Of the six discharges, the first two occurred on November 18, the next three
occurred on November 21, and the final one occurred on November 23. Five of
the six discharges occurred in connection with unannounced Union visits to the
casino. The two sides put very different spins on the events, but the basic facts are
not in dispute. On November 17, 2011, a group of Union representatives showed
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up at the main entrance of the casino with the ostensible purpose of introducing
themselves to the casino’s Vice President and CEO, Daniel Adkins. The Union
delegation included eight off-duty members of the Mardi Gras employee
organization committee, and four of the six discharges at issue were among those
employees: Tashana McKenzie, Dianese Jean, Alicia Bradley, and Amanda Hill.
The NLRB also claims, based on the testimony of lead Union organizer Michael
Hill, that the Union delegation intended to exercise the Union’s right under the
Memorandum of Agreement to access the non-public areas of the casino (i.e., the
break room) to speak with employees. Mardi Gras claims, in contrast, that this
visit was a highly public stunt in order to spur a flagging unionization campaign,
that the Union knew full well that Adkins was not interested in meeting, because
he had so advised them in writing on October 31, and that the Union delegation
stormed the casino and caused a disruption.
In any event, the delegation was asked to leave by security, and they did.
The following day, November 18, a Union delegation returned to the casino. This
time, the group included another of the six discharged employees, Theresa Daniels-
Muse. The Union delegation was again asked by security to leave. The delegation
requested that the casino call the police to document what, in the Union’s view,
was a violation of the neutrality agreement. Once the police arrived and after some
discussion, the Union delegation left.
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Later that day, the casino terminated Bradley and Jean, and suspended
Daniels-Muse, McKenzie, and Amanda Hill for alleged misconduct in participating
in the Union visit to the facility. The three suspended employees were terminated
on November 21.
The last of the six discharges at issue occurred a couple days later, on
November 23. According to Mardi Gras, employee Steve Wetstein, also a member
of the organizing committee, “was dismissed for interfering with a co-worker’s
work by discussing union business while the two were on duty.” The NLRB puts a
more benign face on it, noting that Wetstein asked a fellow employee to meet
outside of work to discuss the Union, that the exchange took less than a minute and
that employees often briefly discuss non-work matters while on duty, but that the
casino nonetheless fired Wetstein for talking to the other employee.
II.
On January 11, 2012, the Union filed charges with the NLRB alleging that
Mardi Gras had engaged in and was continuing to engage in unfair labor practices
in violation of the National Labor Relations Act, 29 U.S.C. §§ 151-169. On April
30, 2012, the NLRB issued an administrative complaint.
Over four months after the Union filed charges, on May 22, 2012, the NLRB
filed in the United States District Court for the Southern District of Florida a
petition for temporary injunctive relief pursuant to section 10(j) of the National
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Labor Relations Act, which it later amended with leave from the district court.3
The operative petition alleges that Mardi Gras has violated and continues to violate
in many ways sections 8(a)(1) and (3) of the National Labor Relations Act, which
make it unlawful for employers “to interfere with, restrain, or coerce employees in
the exercise of the[ir] [collective bargaining] rights” or to discriminate “in regard
to hire or tenure of employment or any term or condition of employment to
encourage or discourage membership in any labor organization.” 29 U.S.C. §§
158(a)(1), (3). In particular, the petition claims that Mardi Gras unlawfully
discharged six of its employees because they joined the Union and to discourage
other employees from engaging in unionization. The petition sought a variety of
injunctive relief,4 but the only relief at issue here is the request for temporary
3
Section 10(j) provides:
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.
29 U.S.C. § 160(j).
4
The NLRB requested an order enjoining Mardi Gras from engaging in unfair labor practices,
including, inter alia, creating an impression that union activities are under surveillance, asking
employees to report on the union activities of other employees, interrogating employees about
union membership and activities, threatening employees with discharge or other reprisals for
engaging in union activities, or actually discharging employees for engaging in union activities.
The district court granted this request. The petition also requested several other orders requiring
Mardi Gras to provide the Union with a list of all its current food and beverage, gaming, and
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reinstatement of the six discharged employees. The district court conducted an
evidentiary hearing on the amended petition on June 18 and 19, 2012. The
witnesses at the hearing were Union organizer Michael Hill, the six discharged
employees, a priest who had accompanied the Union delegation that went to the
Mardi Gras casino on November 17, and the casino Vice President and CEO
Adkins.
After the hearing, the district court entered an order granting the petition in
part, but denying the petition’s request for temporary reinstatement of the
discharged employees. The district court began by recognizing our two part
standard for section 10(j) injunctive relief: there must be reasonable cause to
believe that the alleged unfair labor practices have occurred, and the injunctive
relief must be just and proper. See Arlook, 952 F.2d at 371. The district court
found that the NLRB had met both the legal and factual components of the first
prong: it presented a substantial, nonfrivolous and coherent theory, and also
presented enough factual evidence to support its legal theory and permit a rational
factfinder to find in its favor. See id. at 371-72. That determination is not before
us on appeal.
housekeeping employees, to grant the Union access to the casino’s bulletin boards, to post copies
of the district court’s order at the casino, and to have a management official or an agent of the
NLRB read the district court’s order to employees during a meeting scheduled to ensure
maximum attendance. The district court required Mardi Gras to provide the Union with a current
list of employees, but denied the other requested relief.
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The district court turned next to the issue before us: the equitable
determination whether the injunctive relief of reinstatement was “just and proper.”
It began with the observation that measures of this kind are to be sparingly
employed, because they act to short-circuit the Board’s administrative processes,
and because reinstatement of unlawfully discharged employees is an extraordinary
remedy “generally left to the administrative expertise of the Board.” Boire v. Pilot
Freight Carriers, Inc., 515 F.2d 1185, 1192 (5th Cir. 1975).5 After considering the
testimony and evidence presented at the evidentiary hearing, the district court
remained unconvinced that there was a lingering threat of additional, unrealized
harm flowing from the discharges that would warrant the extraordinary injunctive
relief of temporary reinstatement. The court concluded that the Union’s
organization drive had “grown cold” more than a week prior to any of the
discharges at issue. The court cited the number of cards returned each week: 80 in
the period from November 1 to November 10, just 4 in the week prior to
November 18 (the date of the first discharge), and 3 in the week following
November 18. Notably, the court found that “[e]ach of the six employees at issue
was discharged after the Union had been otherwise unable to successfully
organize, apparently due to a pre-existing reluctance on the part of the employees
to participate.” The court also observed that it took the NLRB more than six
5
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit issued before October 1, 1981.
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months after the terminations and more than four months after the Union brought
the terminations to the attention of the NLRB to file its section 10(j) petition. It
viewed the delay as further evidence that an order of temporary reinstatement
would not likely be any more effective than a final Board order. Thus, the court
concluded that the remedy of temporary reinstatement was neither “just” nor
“proper.”
III.
“[T]he district court’s final conclusion regarding whether or not injunctive
relief is ‘just and proper’ -- an exercise of the district court’s equitable discretion --
can only be reversed by this court if it constitutes an abuse of discretion.” Arlook,
952 F.2d at 372. Moreover, the trial court’s factual findings are reviewed for clear
error and thus “will not be disturbed unless clearly erroneous,” while its legal
conclusions “are subject to our plenary review.” Id.
Under section 10(j) of the National Labor Relations Act, the NLRB may
petition the district court “for appropriate temporary relief or restraining order” and
the district court “shall have jurisdiction to grant to the Board such temporary relief
or restraining order as it deems just and proper.” 29 U.S.C. § 160(j). “Congress
enacted § 10(j) because administrative resolution ‘was so time-consuming that
guilty parties could violate the Act with impugnity [sic] during the years of
pending litigation, thereby often rendering a final order ineffectual or futile.’”
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Arlook, 952 F.2d at 371 (quoting Pilot Freight, 515 F.2d at 1188) (alteration in
original). Thus, section 10(j) plays an important role in preserving meaningful
administrative resolution of unfair labor practices claims. See Pilot Freight, 515
F.2d at 1188 (“Congress . . . gave the labor board a discretionary tool to prevent
erosion of the status of the parties pending its final decision.”). But care must be
taken so that it remains “an extraordinary remedy, to be requested by the Board
and granted by a district court only under very limited circumstances.” Arlook,
952 F.2d at 374. Indeed, binding Fifth Circuit precedent singles out employee
reinstatement as a particularly drastic remedy. Pilot Freight, 515 F.2d at 1192
(“Proper composition of the bargaining unit, reinstatement of unlawfully
discharged employees, and certification of the union as bargaining representative
are matters generally left to the administrative expertise of the Board. We believe
that measures to short-circuit the NLRB’s processes should be sparingly employed.
While it is true Congress implemented § 10(j) to aid the Board in administration of
national labor policy, its scope should not overpower the Board’s orderly
procedures.” (emphasis added)).
While the statute speaks only in broad terms, “[i]n an effort to further the
principles underlying § 10(j), courts have fashioned a bipartite test for determining
the propriety of temporary relief: (1) whether the Board, through its Regional
Director, has reasonable cause to believe that unfair practices have occurred, and
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(2) whether injunctive relief is equitably necessary, or, in the words of the statute,
‘just and proper.’” Id. at 1188-89; accord Arlook, 952 F.2d at 371. Again, the
“reasonable cause” standard is not at issue in this appeal.
Injunctive relief satisfies the “just and proper” standard “whenever the facts
demonstrate that, without such relief, any final order of the Board will be
meaningless or so devoid of force that the remedial purposes of the NLRA will be
frustrated.” Arlook, 952 F.2d at 372 (internal quotation marks and alteration
omitted). We have expressly “decline[d] to delineate an entire list of factors” but
have observed that prior case law “indicates that § 10(j) relief becomes ‘just and
proper’ when organizational efforts are highly susceptible to being extinguished by
unfair labor practices, when unions and employees have already suffered
substantial damage from probable labor violations, and when the violations
reasonably found to have been committed will be repeated absent an injunction.”
Id. (citing Pascarell v. Vibra Screw, Inc., 904 F.2d 874, 880-81 (3d Cir. 1990);
Pilot Freight, 515 F.2d at 1194; Szabo v. P*I*E* Nationwide, Inc., 878 F.2d 207,
210 (7th Cir. 1989)). A district court abuses its discretion “when it misconstrues
its proper role, ignores or misunderstands the relevant evidence, and bases its
decision upon considerations having little factual support.” Id. at 374.
None of those things occurred in this case. To begin with, the district court
did not misconstrue its role; it articulated and applied the relevant legal standards
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from our binding precedents, and the NLRB does not claim that the district court
erred in this respect. The question, then, is whether the district court made
unsupported findings or ignored key evidence. The district court’s conclusion was
largely based on two related considerations: (1) a factual finding that the testimony
and evidence presented at the evidentiary hearing indicated that the Union’s
campaign to organize the Mardi Gras workforce had already grown cold more than
a week prior to any of the discharges; and (2) the NLRB’s more than four-month
delay in bringing the petition was further evidence that no lingering harm caused
by the discharges remained that would be better alleviated by temporary injunctive
relief as compared to a final Board order.
Both of these conclusions were amply supported by the record, and,
therefore, the district court did not clearly err in its factual findings or abuse its
discretion in reaching its ultimate conclusion. As for the first point, the numbers
don’t lie. 80 of the 92 total cards signed were signed by November 10, 2011, over
a week before the first of the discharges at issue. The following week, only 4 cards
were signed, and the week after that -- i.e., the week following the discharges --
another 3 were signed. Thus, the district court’s factual finding that the
organization campaign had dramatically slowed before the discharges took place
was hardly clearly erroneous, and it is not apparent from the record that the
discharges themselves had a clear chilling effect on the volume of cards coming in.
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Or, to put it another way, under the circumstances the Union’s organization efforts
were not “highly susceptible to being extinguished by unfair labor practices,”
Arlook, 952 F.2d at 372, because the organization campaign was already faltering
before the allegedly unfair labor practices had occurred. Thus, for example, the
district court noted -- and the NLRB acknowledges -- that employee Wetstein
testified that he conducted 40 to 60 home visits before his discharge and obtained
only 5 cards, and that employee McKenzie contacted 20 to 30 employees and
obtained no cards before her discharge, and only one card after. This is not a case -
- or not clearly a case, in any event -- in which the Union campaign was humming
along and then the discharges put it on ice.
The NLRB nonetheless responds that the district court failed to appreciate
the chilling effect that the discharges had on the Union’s campaign to organize.
The NLRB cites testimony at the evidentiary hearing from the discharged
employees who claimed that after their discharges, employees they visited were
more fearful and were nervous about speaking to members of the Union. But each
piece of testimony was undermined at least in part on cross-examination or in other
parts of the employees’ testimony. For instance, the NLRB cites the testimony of
employee McKenzie that, after her discharge, employees generally did not answer
the door when she attempted to visit them at home. But Mardi Gras points out that
McKenzie visited twenty to thirty employees prior to her discharge and did not
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obtain a single authorization card; her only success in obtaining one authorization
card occurred after her discharge. Employee Daniels-Muse spoke to two
employees after her discharge; she testified that both told her they were afraid of
losing their jobs if they participated in any Union activity. But Daniels-Muse also
testified on cross-examination that in fact both of those employees had elected to
sign authorization cards, and neither asked her to revoke the cards or get them back
in any way or otherwise withdrew their support for unionization. Employee
Bradley testified that employees ran and hid or told her they didn’t want to talk to
her when she visited them after her discharge. Bradley testified as to conversations
she had with three employees after her discharge, all of whom told her that they
were scared and didn’t want to be a part of the Union for fear of losing their jobs.
But Bradley also testified on both direct and cross examination that one of the
three employees actually signed an authorization card. In addition, she said that
even prior to her discharge she only was able to get one employee out of ten to sign
an authorization card; the other nine told her no.
Additional record evidence arguably undermines the Board’s view. The
evidence at the evidentiary hearing demonstrated that after the discharges,
attendance at Union meetings stayed the same or even slightly increased. Indeed,
the record also demonstrated that no one sought in any way to rescind or revoke
their authorization cards following the discharges. Employee Hill testified that all
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of the co-workers in her department signed authorization cards prior to her
discharge, and that none of these employees sought to rescind their authorization
card after her discharge. The NLRB does not dispute this testimony; rather, it
acknowledges that “[i]t appears that few, if any, employees asked the Union to
return their signed cards” and that “attendance at Union meetings endured after the
discharges.” The NLRB views the evidence in a different light than did the district
court, urging that it demonstrates that “there is still a ‘spark to unionize’ at the
Casino,” and that reinstatement will rekindle the organization effort or provide the
“jump start” the effort needs.
The NLRB’s problem here is that the weight to be accorded competing
pieces of evidence or the act of choosing between plausible but competing views of
the record is a classic exercise of a district court’s factfinding function that we are
not permitted to redo on appellate review. See, e.g., Anderson v. Bessemer City,
470 U.S. 564, 573-74 (1985) (“If the district court’s account of the evidence is
plausible in light of the record viewed in its entirety, the court of appeals may not
reverse it even though convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently. Where there are two permissible
views of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.”); Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 857 (1982) (“An
appellate court cannot substitute its interpretation of the evidence for that of the
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trial court simply because the reviewing court might give the facts another
construction [or] resolve the ambiguities differently . . . .” (internal quotation
marks omitted)). None of the NLRB’s arguments provide a basis to overturn the
district court’s exercise of its considerable equitable discretion, or demonstrate that
the district court’s factual findings about the state of the Union organization
campaign at the time of the discharges were clearly erroneous. Our appellate
review is limited, and the district court’s reasonable reading of the entire record
cannot be overturned.
The NLRB also faults the district court for relying on the NLRB’s delay in
filing a section 10(j) petition. But the delay between the time of the discharges or
the Union complaints and the time the NLRB filed its section 10(j) petition is
relevant, and the district court did not abuse its discretion by relying on it. See
Pilot Freight, 515 F.2d at 1193 (“The Board waited three months before petitioning
the district court for temporary relief. Although the time span between
commission of the alleged unfair labor practices and filing for § 10(j) sanctions is
not determinative of whether relief should be granted, it is some evidence that the
detrimental effects of the discharges have already taken their toll on the
organizational drive.”). It is relevant because delay makes it difficult to justify
granting temporary injunctive relief when that relief may not be “any more
effective than a final Board order” several months after the alleged unfair labor
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practices have occurred. Id. The district court did not examine the delay for
delay’s own sake or craft any kind of bright line rule, but rather viewed the delay
as further evidence that the Union’s organizational drive was not likely to gain any
additional marginal benefit from temporary injunctive relief as opposed to a final
Board order. It was entitled to do so, and, again, did not abuse its discretion. See
id.
Moreover, this is not a case where the delay is of little moment because of
the “on-going, cumulative nature of the allegedly unfair labor practices.” Vibra
Screw, 904 F.2d at 881 (six month delay was not too long in light of ongoing
harms and other circumstances of the case). In such cases, temporary injunctive
relief may still be of great value to protect against ongoing harms, even if the
initial harm is in the distant past. But here, there has been no allegation of any
ongoing unfair labor practices after the six discharges at issue, or any indication
that “the violations reasonably found to have been committed will be repeated
absent an injunction.” Arlook, 952 F.2d at 372.
Quite simply, the district court did not abuse its discretion in concluding that
the temporary reinstatement of six discharged employees was not a “just and
proper” form of relief requested by the Board in this section 10(j) proceeding. We
affirm.
AFFIRMED.
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