DocketNumber： 95-1266
Filed Date： 11/21/1995
Status： Precedential
Modified Date： 9/21/2015
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1266
EFRAIN RIVERA-VEGA, ET AL.,
Plaintiffs - Appellees,
v.
CONAGRA, INC., ET AL.,
Defendants - Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Dom nguez, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Boudin and Stahl, Circuit Judges. ______________
_____________________
Roger J. Miller, with whom McGrath, North, Mullin & Kratz, ________________ ________________________________
P.C., Angel Mu oz-Noya and Lespier & Mu oz-Noya were on brief for ____ ________________ ____________________
appellants.
Robert Tendrich, Attorney, National Labor Relations Board, _______________
with whom Frederick L. Feinstein, General Counsel, Mary Joyce _______________________ __________
Carlson, Deputy General Counsel, Barry J. Kearney, Acting _______ ___________________
Associate General Counsel, Ellen A. Farrell, Assistant General _________________
Counsel, and Corinna L. Metcalf, Deputy Assistant General ___________________
Counsel, National Labor Relations Board, were on brief for
appellees.
____________________
November 21, 1995
____________________
TORRUELLA, Chief Judge. The respondent companies TORRUELLA, Chief Judge. ____________
appeal an Order of the district court granting temporary
injunctive relief to the Regional Director of the National Labor
Relations Board under 10(j) of the National Labor Relations
Act. The district court found reasonable cause to believe that
the respondents violated their duty to bargain in good faith by
refusing to provide the bargaining representative of its
employees with requested financial documents. Based
substantially on this violation, the district court issued a
preliminary injunction. Finding neither clear error nor abuse of
discretion, we affirm.
I. I.
BACKGROUND BACKGROUND __________
Molinos de Puerto Rico, Inc. ("MPR") is a wholly owned
subsidiary of ConAgra, Inc. (collectively, the "respondents").1
MPR maintains three production facilities in Puerto Rico where it
mills, sells and distributes wheat, corn flour, and animal feed.
In June 1993, Congreso de Uniones Industriales de Puerto Rico
("the union") and the respondents began negotiations for a new
collective bargaining agreement, covering unit employees at MPR,
to replace an existing agreement, which was nearing expiration.
____________________
1 The district court found reasonable cause to believe that the
two corporate entities are "joint employers" in the context of
labor relations. As discussed infra, this finding is not clearly _____
erroneous and is, accordingly, affirmed. We therefore refer to
the two companies jointly as the respondents. In addition, we
note that the district court's finding of joint employers applies
to ConAgra, Inc., and/or Conagra Grain Processing Companies, Inc.
For convenience sake only, we refer simply to "ConAgra."
-2-
The parties soon became involved in a dispute over wages and
benefits -- respondents wanted to cut them, and the union sought
increases. On several occasions, the union requested MPR's
audited financial statements for the past five years to evaluate
respondent's bargaining position. Respondents repeatedly refused
to provide the requested information, and after four months of
bargaining and 18 bargaining sessions, declared an impasse on
October 28, 1993. On October 29, respondents informed the union
that forty employees would be laid off on November 1st. On
November 1st, respondents locked out employees reporting to work
at MPR. Respondents subsequently hired replacement workers and
continued operations.2
The union filed an unfair labor practice charge with
the National Labor Relations Board (the "NLRB"). The NLRB issued
an unfair labor practice complaint on March 25, 1994, which
charged that the respondents, as joint employers, violated
8(a)(1), (3) and (5) of the National Labor Relations Act (the
"NLRA"), 29 U.S.C. 158(a)(1),(3), by, inter alia, failing to _____ ____
bargain in good faith when it refused to provide the union with
____________________
2 Respondents argued to the district court that the lockout was
implemented in lieu of the lay-off, and that the lay-off never
occurred. The district court appears to have rejected this
argument: "The problem with this theory is that at no time have
Respondents stated to the Union that the lay-off contemplated in
the implementation of their final offer has been set aside.
Thus, the number of employees in the unit remains currently at
minus forty employees." We find the record unclear on this
question. Because resolution of this issue is unnecessary for
purposes of our decision, we consider only the fact that
respondents announced the lay-offs, and not whether the lay-offs
were actually implemented.
-3-
the requested financial information, unilaterally changing the
terms and conditions of employment before impasse was reached,
unlawfully laying off 40 employees, and imposing a lockout and
replacing employees with temporary employees to compel acceptance
of its bargaining position. An administrative law judge ("ALJ")
conducted a hearing on the matter from May 9 to 13, 1994.3 On
June 10, 1994, the NLRB petitioned the district court for a
temporary injunction pursuant to section 10(j) of the NLRA, 29
U.S.C. 160(j).
After a hearing, the district court issued a
comprehensive and detailed opinion in which it found reasonable
cause to believe, inter alia, that: (1) respondents violated _____ ____
8(a)(1) and (5) by refusing to provide the requested financial
information to the union; (2) the refusal to furnish the
financial statements precluded valid impasse; (3) respondents
violated 8(a)(5) by making unilateral changes in the terms and
conditions of employment when no valid impasse existed; and (4)
respondents violated 8(a)(3) and (1) by locking out employees,
and using replacements, in furtherance of its tainted bargaining
position. The court further concluded that the standards for
issuance of a preliminary injunction were met, and that such
relief was just and proper to preserve the NLRB's ability to
provide meaningful relief in the underlying unfair labor practice
____________________
3 The ALJ issued a decision on June 13, 1995. The ALJ found
that respondents committed various unfair labor practices, many
of which are relevant to the issues in this appeal. We take
judicial notice of the ALJ's decision.
-4-
action. Finally, the court found reasonable cause to believe
that MPR and ConAgra, Inc., are joint employers for the purposes
of labor relations.
The district court issued a temporary injunction,
pending a final resolution by the NLRB of the unfair labor
practice action, directing the employer, upon request, to: (1)
meet and bargain with the union; (2) restore working conditions
which existed prior to October 28, 1993, and maintain them until
the parties bargain in good faith to an agreement or an impasse
on the changes; (3) provide the union with all requested
information necessary and relevant for collective bargaining; and
(4) reinstate locked out or terminated employees. Respondents'
motion for a stay pending appeal was denied by the district court
on March 6, 1995, and subsequently by this court on March 20,
1995.
II. II.
STANDARD OF REVIEW STANDARD OF REVIEW __________________
Section 10(j) of the NLRA authorizes the NLRB to seek,
and the United States district courts to grant, interim relief
pending the NLRB's resolution of unfair labor practices. See 29 ___
U.S.C. 160(j).4 In considering a petition for interim relief
____________________
4 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
district court of the United States . . .
for appropriate temporary relief or
-5-
under 10(j), a district court must limit its inquiry to (1)
whether the NLRB has shown "reasonable cause" to believe that the
employer has committed the unfair labor practices alleged, and
(2) whether injunctive relief is "just and proper." See Pye v. ___ ___
Sullivan Bros., 38 F.3d 58, 63 (1st Cir. 1994) (collecting _______________
cases). In determining whether the NLRB has shown reasonable
cause, the district court does not decide whether an unfair labor
practice actually occurred; rather, its role is limited to
determining only whether the NLRB's position is "fairly supported
by the evidence." Id. (quoting Asseo v. Centro M dico del __ _____ ___________________
Turabo, 900 F.2d 445, 450 (1st Cir. 1990)). The district court ______
does not resolve contested issues of fact, deferring instead to
the NLRB's version of the facts if they are "within the range of
rationality." Maram v. Universidad Interamericana de Puerto _____ ______________________________________
Rico, Inc., 722 F.2d 953, 958 (1st Cir. 1983). We review the __________
district court's conclusion that reasonable cause exists only for
clear error, and examine its decision to grant equitable relief
only for abuse of discretion. Sullivan Bros., 38 F.3d at 63; ______________
Centro M dico del Turabo, 900 F.2d at 450. ________________________
III. III.
DISCUSSION DISCUSSION __________
A. Duty to Disclose Financial Information A. Duty to Disclose Financial Information ______________________________________
____________________
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.
-6-
Sections 8(a)(5) and (d) of the NLRA make it an unfair
labor practice for an employer to refuse to bargain in good faith
with its employees' representative. 29 U.S.C. 158(a)(5), (d).
One element of the duty to bargain in good faith is that the
employer must, upon request, supply relevant information needed
by the union "for the proper performance of its duties as the
employees' bargaining representative." Detroit Edison Co. v. ____________________
NLRB, 440 U.S. 301, 303 (1979); NLRB v. Acme Indus., 385 U.S. ____ ____ ___________
432, 435-36 (1967); Soule Glass and Glazing Co. v. NLRB, 652 F.2d ___________________________ ____
1055, 1092 (1st Cir. 1981). The purpose of this rule is to
"enable the [union] to understand and intelligently discuss the
issues raised in bargaining." Soule Glass, 652 F.2d at 1092 ___________
(quoting San Diego Newspaper Guild v. NLRB, 548 F.2d 863, 866 __________________________ ____
(9th Cir. 1977)). Information relating to wages, hours, and
other terms and conditions of employment is presumptively
relevant and necessary for the union to perform its obligations.
Teleprompter Corp. v. NLRB, 570 F.2d 4, 8 (1st Cir. 1977); F.A. ___________________ ____ ____
Bartlett Tree Expert Co., Inc., 1995 WL 238413, *2 (NLRB). ______________________________
No such presumption exists with respect to financial
data. Because of the sensitive nature of a company's financial
data, the general rule is that such information need not be
disclosed unless the bargaining representative first makes a
showing that "it is specially relevant to the bargaining taking
place." Teleprompter Corp., 570 F.2d at 8 (citing Int'l ___________________ _____
Woodworkers v. NLRB, 263 F.2d 483 (D.C. Cir. 1959) (Burger, J.)). ___________ ____
If the employer itself puts profitability into issue by claiming
-7-
an inability to pay an increase in wages, however, then the
financial information is presumptively relevant to the bargaining
process, and the employer is required to substantiate its
economic condition. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152- ____ _______________
53 (1955); Teleprompter Corp. v. NLRB, 570 F.2d 4, 7 (1st Cir. __________________ ____
1977). The Supreme Court has explained the rationale for this
rule as follows:
Good faith bargaining necessarily
requires that claims made by either
bargainer should be honest claims. This
is true about an asserted inability to
pay an increase in wages. If such an
argument is important enough to present
in the give and take of bargaining, it is
important enough to require some sort of
proof of its accuracy.
Truitt Mfg., 351 U.S. at 152-53.5 ___________
Circuit courts interpreting Truitt have long ______
distinguished between cases in which an employer claims an
inability to pay the requested wage increase and those in which
the employer maintains that complying with the union's request
would place it at a competitive disadvantage, ordering disclosure
in the former but denying it in the latter. See, e.g., NLRB v. ___ ____ ____
Harvstone Mfg. Co., 785 F.2d, 575-89 (7th Cir.), cert. denied, ___________________ ____________
479 U.S. 821 (1986); Buffalo Concrete, 276 N.L.R.B. 839 (1985), ________________
enfd., 803 F.2d 1333 (4th Cir. 1986). In two recent cases, the _____
____________________
5 The court also stressed that the right to disclosure in
inability-to-pay cases was not automatic: "Each case must turn on
its particular facts. The inquiry must always be whether or not
under the circumstances of the particular case the statutory
obligation to bargain in good faith has been met." Id. at 153-54 __
(footnote omitted).
-8-
NLRB recognized, and elaborated upon the parameters of, this
dichotomy.
In Nielsen Lithographing Co., 305 N.L.R.B. 697, enfd. __________________________ _____
sub nom Graphic Communications Int'l Union, Local 508 v. NLRB, _______ _______________________________________________ ____
977 F.2d 1168 (7th Cir. 1992), the NLRB held that a mere claim of
competitive disadvantage does not compel an employer to open its
financial records to a union. The NLRB explained:
The employer who claims a present
inability to pay, or a prospective
inability to pay during the life of a
contract being negotiated is claiming
essentially that it cannot pay. By
contrast, the employer who claims only
economic difficulties or business losses
or the prospect of layoffs is simply
saying that it does not want to pay.
We do not say that claims of economic
hardship or business losses or the
prospect of layoffs can never amount to a
claim of inability to pay. Depending on
the facts and circumstances of a
particular case, the evidence may
establish that the employer is asserting
that the economic problems have led to an
inability to pay or will do so during the
life of the contract being negotiated
. . . . The distinction has always been
between claims of 'cannot' and will not."
Nielsen, 305 N.L.R.B. at 701. Thus, under Nielsen, an employer _______ _______
must disclose financial information to the union if the employer
has asserted that it "cannot pay" wage increases, but need not do
so if it has asserted only that it "will not pay" wage increases.
In The Shell Company, 313 N.L.R.B. 133 (1993), 1993 WL _________________
491815, the NLRB made explicit what was implicit in Nielsen -- _______
namely, that the critical inquiry in the "cannot pay"/"will not
-9-
pay" distinction is the substance of the employer's bargaining _________
position, not the formal words used by the employer.
In Shell, the employer consistently stated that "it was _____
not pleading poverty or inability to pay in the negotiations, but
was simply adopting a firm position in order to become more
competitive in the short run and in the future." Id. at *6. The __
NLRB nevertheless concluded:
Although the [company] referred to
economic disadvantages it had in relation
to other competitors, . . . the testimony
reveals that the essential core of the
[company's] bargaining posture as a
whole, as expressed to the Union, was
grounded in assertions amounting to a
claim that it could not economically
afford the most recent contract at its
Airport operation, that it was faced with
a present threat to that operations
survival, and that, therefore, it was at
present unable to pay those terms in the
successor contract.
Id. at *1. See also New York Printing Pressmen and Offset __ _________ ________________________________________
Workers Union No. 51 v. NLRB, 538 F.2d 496, 500 (2d Cir. 1976) _____________________ ____
("So long as the Employer's refusal reasonably interpreted is the
result of financial inability to meet the employees' demand
rather than simple unwillingness to do so, the exact formulation
used by the Employer in conveying this message is immaterial.").
The facts upon which the NLRB relied in Shell were that _____
the employer's bargaining representative told the union
negotiator during negotiations for the new collective bargaining
agreement that (1) economic conditions had affected the company
"very badly, very seriously"; (2) present circumstances at the
company's Airport were "bad," "critical" and a matter of
-10-
"survival"; and (3) the company was losing business, had lost an
important customer, and was facing serious regulatory and cost
problems. He also said: "we are telling you this because we need
your help, your assistance, because of this condition." In
addition, the NLRB found it significant that the employer
expressly referred to steps it had already taken to address the
threats to its survival; namely, that it had put a hiring freeze
on all management and employee positions, and implemented an
early retirement plan. Id. __
Based on these statements, the ALJ concluded:
The Company's situation at the Airport
was continually described as "critical"
and a matter of "survival." Critical
certainly denotes a degree of urgency or
crisis, and when used with survival,
denotes a situation in medical terms that
would indicate the patient is in imminent
danger of dying, or in the case of the
Airport operation, closing down. I do
not think a reasonable person could hear
Respondent's representatives describe the
airport situation as critical and one of
survival, and believe that they were
speaking of some event that might occur
at some point three years or more in the
future.
Id. at *31. __
The district court found the instant action similar to
Shell. The court concluded that "[w]hile Respondents _____
continuously reiterated that they needed to remain competitive
and denied claiming inability to pay, the 'essential core' of its
bargaining posture was in effect that it could not afford the
terms of the successor contract." The district court based this
conclusion upon the substance of the message communicated by
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respondents to the union over the course of the four month
bargaining period. In particular, the district court noted the
following allegations by the NLRB.
During the first bargaining session, the negotiator for
respondents spoke of the difficult situation facing the company
and stated "if we don't take immediate measures there is a
probability that we won't be here in the future." Respondents'
negotiator also suggested that ConAgra, Inc., was considering
closing the mill in Puerto Rico and bringing in flour directly
from the United States. In addition, respondents' negotiators
made the following statements during the course of bargaining:
(1) "The situation is a serious one and fragile."; (2) "If we are
not competitive we cannot survive."; (3) "Things like this [the
need to eliminate the granting of a soap bar to employees] are
what makes us not competitive vis- -vis the other and could make
us have to close shop because we cannot compete."; and (4) "We
see the situation as quite risky because of our ability to be
competitive." The court also found it significant that, during
negotiations, respondents told the union that it was necessary to
significantly reduce the number of employees, and then, a day
after it declared impasse, told the union that it had decided to
lay-off forty employees (almost 30% of the unit) because of its
economic position.
Based on the foregoing, the district court determined
that the NLRB had shown reasonable cause to believe that the
employer had committed an unfair labor practice by not disclosing
-12-
the requested financial information. As noted previously, the
district court's role in this matter was not to determine whether
an unfair labor practice actually occurred, but to determine
whether the NLRB's position is "fairly supported by the
evidence." Sullivan Bros., 38 F.3d at 63 (quoting Centro M dico, ______________ _____________
900 F.2d at 450). On this record, we cannot conclude that the
district court's conclusion was clearly erroneous.
Moreover, we think our conclusion, reached after
independently reviewing the record, is confirmed by the fact that
the ALJ, who held a hearing and took evidence on the NLRB's
allegations, concluded that the respondents violated 8(a)(5)
and (1) by refusing to provide the union with the requested
financial information. Specifically, the ALJ found that the
facts of the instant case "fall closer to Shell than Nielsen, _____ _______
thereby bringing it 'within the gravitational field of Truitt.'" ______
Respondents' most compelling argument on appeal is
that, during the bargaining process, their negotiators
consistently used the phrase "long term" when discussing MPR's
prospects for survival. The difficulty with this argument is
that the proposed agreement under negotiations was for a period
of five years. While it might be argued that the phrase "long
term" implies a time more than five years hence, it can just as
persuasively be argued that to most workers -- as opposed to, for
example, a corporate executive in charge of strategic planning --
"long term" suggests next year, the year after, etc. The
question under Neilsen and Shell is whether the "essential core" _______ _____
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of the employer's bargaining position amounts to a claim of a
present inability to pay, or of a prospective inability to pay ______________________________________
during the life of a contract being negotiated. Neilsen, 305 ________________________________________________ _______
N.L.R.B. at 701; Shell, 1993 WL 491815, at *1-2. We cannot say _____
that the district court's conclusion in this regard is clearly
erroneous. See Shell, 1993 WL 491815, *31 ("I do not think a ___ _____
reasonable person could hear Respondent's representatives
describe the airport situation as critical and one of survival,
and believe that they were speaking of some event that might
occur at some point three years or more in the future.").6
B. Impasse B. Impasse _______
An employer violates 8(a)(1) and (5) of the NLRA by
unilaterally changing a condition of employment that is the
subject of negotiations, or refusing to negotiate on a mandatory
bargaining topic. NLRB v. Katz, 369 U.S. 736, 743 (1962). "The ____ ____
principle exception to this rule occurs when the negotiations
reach an impasse: when impasse occurs, the employer is free to
____________________
6 Pursuant to the district court order, the parties have agreed
to a confidentiality agreement with respect to the financial
information. This agreement moots many of respondents' arguments
with respect to the financial information. Moreover, we reject
respondents' contention that it was excused from disclosing the
information during negotiations because the union resisted a
confidentiality agreement. The record as a whole indicates that
respondents' willingness to disclose the information, subject to
a confidentiality agreement, was tied to its insistence that the
union first demonstrate the relevancy of the documents, and its
rejection of the union's assertion that the information was
relevant to substantiate respondents' assertion that it was
unable to pay the increased wages. Thus, even if the union had
agreed to a confidentiality agreement, respondents' would not
have disclosed the information because it rejected the union's
relevancy showing.
-14-
implement changes in employment terms unilaterally so long as the
changes have been previously offered to the union during
bargaining." Bolton-Emerson, Inc. v. NLRB, 899 F.2d 104, 108 ____________________ ____
(1st Cir. 1990) (quoting Huck Mfg. v. NLRB, 693 F.2d 1176, 1186 _________ ____
(5th Cir. 1982)). An impasse exists when, after good faith
bargaining, "the parties are deadlocked so that any further
bargaining would be futile." Id. (citing Gulf States Mfg., Inc. __ ______________________
v. NLRB, 704 F.2d 1390, 1398 (5th Cir. 1983)). ____
We have upheld, as not clearly erroneous, the district
court's finding of reasonable cause to believe that respondents
had a duty to disclose the requested financial information, and
that their failure to do so constituted a failure to bargain in
good faith with the union in violation of 8(a)(5) of the NLRA.
See Truitt, 351 U.S. at 152-53 (employer's refusal to produce ___ ______
financial records to substantiate claim of inability to pay
increased wages may support finding of failure to bargain in good
faith); Teleprompter, 570 F.2d at 8 n.2 (noting that Truitt has ____________ ______
become "widely accepted" as establishing an "automatic" rule of
disclosure in inability to pay cases). See also Katz, 369 U.S. ________ ____
at 747 (rejecting contention that a finding of subjective bad
faith is a prerequisite to a conlusion that employer violated
8(a)(5)). The district court found reasonable cause to believe
that respondents' failure to bargain in good faith precluded
valid impasse from occurring. Cf. New York Printing, 538 F.2d at __ _________________
501 (there can be no genuine impasse where employer has failed to
bargain in good faith by refusing to disclose properly requested
-15-
financial information); NLRB v. Palomar Corp., 465 F.2d 731, 735 ____ _____________
(5th Cir. 1972) (no valid impasse because, "in refusing to
disclose their financial records to the Union, [respondents]
failed to bargain in good faith as required by" the NLRA). Based
on the foregoing considerations, we conclude that this finding is
not clearly erroneous.
C. The Unilateral Changes in Conditions C. The Unilateral Changes in Conditions ____________________________________
of Employment and the Lockout of Employment and the Lockout _____________________________
An employer violates its bargaining obligation under
8(a)(1) and (5) if, without having negotiated to impasse, it
unilaterally changes its employees' terms or conditions of
employment. Katz, 369 U.S. at 743. The district court in this ____
case found reasonable cause to believe that respondents'
implemented the following unilateral changes: alteration of the
form of employee payment from cash to check; refusal to provide
employees with contractual Thanksgiving turkey, and the payment
of accrued vacation time; termination of medical plan coverage
for locked out employees; and a lay-off of forty employees. With
exception of the last question, see infra n.2, each of these ___ _____
findings is "fairly supported by the evidence," see Centro M dico ___ _____________
del Turabo, 900 F.2d at 450, and therefore not clearly erroneous. __________
Because we uphold the district court's finding of reasonable
cause to believe that impasse did not exist, we also uphold its
finding of reasonable cause to believe that respondents'
unilateral changes to the terms and conditions of employment
violated 8(a)(5).
-16-
There is no dispute that respondents locked-out their
employees and hired replacement workers. The district court
found reasonable cause to believe that the purpose of the lockout
was to compel acceptance of respondents' tainted bargaining
position (i.e., its failure to disclose the properly requested
financial information), and therefore found reasonable cause to
believe that the lockout, and use of replacements, constituted an
unfair labor practice.
The district court properly recognized that a lockout
motivated by an employer's desire to bring economic pressure to
bear in support of its legitimate bargaining posture is lawful.
See American Shipbuilding Co. v. NLRB, 380 U.S. 300, 312-13 ___ __________________________ ____
(1965). The district court also recognized, however, that a
lockout with a proscribed purpose is illegal. See id. at 313 (to ___ __
find that lockout violates 8(a)(3) NLRB must find that the
employer acted for a "proscribed purpose").
The disagreement that led to the lockout concerned
wages. We have upheld the district court's finding of reasonable
cause to believe that the sticking point was respondents'
insistence that it could not pay increased wages, and its illegal
refusal to substantiate this claim. Thus, the district court
found reasonable cause to believe that the lockout in this case
was motivated by respondents' desire to compel acceptance of
their illegally tainted bargaining position. There is no
question that a lockout under such circumstances violates
8(a)(3) of the NLRA. See, e.g., American Cyanamid Co. v. NLRB, ___ ____ _____________________ ____
-17-
592 F.2d 356, 364 (7th Cir. 1979); Movers & Wrhsemen's Ass'n v. __________________________
NLRB, 550 F.2d 962, 966 (4th Cir. 1977); NLRB v. Bagel Bakers ____ ____ _____________
Council, 434 F.2d 884, 888-89 (2d Cir.), cert. denied, 402 U.S. _______ ____________
908 (1970); NLRB v. Southern Beverage Co., 423 F.2d 720 (5th Cir. ____ _____________________
1970). We therefore conclude that the district court's finding
of reasonable cause with respect to the lockout was not clearly
erroneous.
D. Joint Employers D. Joint Employers _______________
The district court found reasonable cause to believe
that MPR and ConAgra, Inc., are joint employers. "A joint
employer relationship exists where two or more employers exert
significant control over the same employees and share or co-
determine those matters governing essential terms and conditions
of employment." Holyoke Visiting Nurses Ass'n v. NLRB, 11 F.3d ______________________________ ____
302, 306 (1st Cir. 1993) (citing Rivas v. Federaci n de _____ ______________
Asociaciones Pecuarias de Puerto Rico, 929 F.3d 814, 819-20 (1st _____________________________________
Cir. 1991)). See also Boire v. Greyhound Corp., 376 U.S. 473, ________ _____ _______________
481 (1964); NLRB v. Browning-Ferris Indus., Inc., 691 F.2d 1117, ____ _____________________________
1124 (3d Cir. 1982).
In Holyoke Nurses and Rivas, this court favorably _______________ _____
acknowledged a host of factors used by other courts in
determining the existence of joint employer status. See Holyoke ___ _______
Nurses, 11 F.3d at 306; Rivas, 929 F.2d at 820-21. Those factors ______ _____
include: supervision of the employees' day-to-day activities;
authority to hire, fire, or discipline employees; authority to
promulgate work rules, conditions of employment, and work
-18-
assignments; participation in the collective bargaining process;
ultimate power over changes in employer compensation, benefits
and overtime; and authority over the number of employees. See ___
W.W. Granger, Inc. v. NLRB, 860 F.2d 244, 247 (7th Cir. 1988); ___________________ ____
Clinton's Ditch Cooperative Co. v. NLRB, 778 F.2d 132, 138-39 (2d _______________________________ ____
Cir. 1985), cert. denied, 479 U.S. 814 (1986); Ref-Chem Co. v. _____ ______ ____________
NLRB, 418 F.2d 127, 129 (5th Cir. 1969). ____
Whether joint employer status exists is essentially a
factual question. Holyoke Nurses, 11 F.3d at 306. As noted ______________
previously, in the context of a 10(j) petition for interim
relief, the district court does not resolve contested issues of
fact, but instead defers to the NLRB's version of the facts if
they are "within the range of rationality." Maram, 722 F.2d at _____
958.
In this case, the district court found that MPR is a
wholly owned subsidiary of ConAgra, uses its logo, holds itself
out to the public as a ConAgra enterprise, and has some directors
who also hold positions at ConAgra. The court also found that
the impetus for respondents' decision to seek wage and benefit
cuts in the new bargaining session was a change in the
organizational structure of ConAgra, pursuant to which MPR would
be part of more than sixty companies known as ConAgra Grain
Processing Company, and subsequently be compared to them.
Significantly, the court found that ConAgra's Vice-
President of Human Resources, Raymond Godbout ("Godbout") was
responsible for the negotiation strategy utilized during the
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bargaining sessions, and acted throughout as an advisor to MPR's
negotiator. Moreover, the court found that Godbout actively
participated in the bargaining sessions, and on one occasion
stated to the union representative: "what I would like to do is
go back to my people and talk with the persons at the corporate
level . . . . See if we can sharpen the pencil and present to
you what our position is." In addition, the court found that the
drug policy proposed during negotiations was the same policy used
by ConAgra at its other plants, and that MPR's employees have the
same pension plan as that of ConAgra employees. The court
further found that, after the lockout, Godbout became the "de
facto spokesperson" for the respondents, and that henceforth
ConAgra was determining labor policies for MPR through Godbout.
The court also found that, after the lockout, replacement workers
were provided and paid by ConAgra.
Based on these factors, the court found reasonable
cause to believe MPR and ConAgra are joint employers for purposes
of the pertinent collective bargaining negotiations. The court's
factual findings are "fairly supported by the evidence," see ___
Sullivan Bros., 38 F.3d at 63, and its finding of reasonable _______________
cause is not clearly erroneous.
E. The Preliminary Injunction E. The Preliminary Injunction __________________________
The district court properly recognized and applied the
test for determining whether interim relief is "just and proper"
under 10(j). The determination of whether injunctive relief is
just and proper hinges upon whether the NLRB has demonstrated:
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(1) a likelihood of success on the merits; (2) the potential for
irreparable injury in the absence of relief; (3) that such injury
outweighs any harm preliminary injunctive relief would inflict on
the employer; and (4) that preliminary relief is in the public
interest. Sullivan Bros., 38 F.3d at 58 (collecting cases). _______________
When, as in this case, the interim relief sought by the NLRB "is
essentially the final relief sought, the likelihood of success
should be strong." Id. (quoting Asseo v. Pan American Grain Co., ______ __ _____ ______________________
805 F.2d 23, 25 (1st Cir. 1986)).
It is well settled that "we scrutinize a district
court's decision to grant or deny a preliminary injunction under
a relatively deferential glass." Feinstein v. Space Ventures, _________ _______________
Inc., 989 F.2d 49, 51 (1st Cir. 1993) (quoting Independent Oil & ____ _________________
Chem. Workers of Quincy, Inc. v. Proctor & Gamble Mfg. Co., 864 _____________________________ _________________________
F.2d 927, 929 (1st Cir. 1988)). Unless the district court has
made a mistake of law or abused its discretion, we will not
disturb its decision. See Sullivan Bros., 38 F.3d at 63-64; ___ ______________
Feinstein, 989 F.2d at 51. _________
With these principles in mind, we review the district court's
decision that interim relief under 10(j) was just and proper.
The district court plainly did not abuse its discretion
in finding a strong likelihood that the NLRB will succeed on the
merits of its unfair labor practice claims. The court
meticulously and comprehensively applied the appropriate legal
standards to the NLRB's allegations. Respondents challenge to
the district court's finding in this regard is limited to a
-21-
rehash of their arguments that the court clearly erred in finding
reasonable cause on each of the alleged unfair labor practices.
Contrary to respondents' arguments, the district court's findings
are amply supported by both the record and pertinent case law.
The district court found the potential for irreparable
injury in the absence of interim relief because of the potential
effect of the large scale employee lockout on union support and
the union's ability to bargain effectively on behalf of its
employees. The court specifically found that the lockout had
already caused an erosion in union support. Erosion of union
support cannot be remedied by the NLRB's ultimate order. See ___
Centro M dico, 900 F.2d at 454; Asseo v. Pan American Grain Co., _____________ _____ _______________________
805 F.2d 23, 26-27 (1st Cir. 1986). Moreover, we agree with the
district court that the fact that the lockout in this case was
directed to "the entire work force" increases the chances of
irreparable harm. See Maram, 722 F.2d at 959. In this regard, ___ _____
the court specifically found that respondents' conduct had
already caused many employees to be in arrears on their loans,
which consequently damaged their credit. We find no abuse of
discretion in the court's finding of a potential for irreparable
harm.
Nor do we find abuse of discretion in the court's
determination that the very real danger that the union would lose
support because of unfair labor practices committed by the
employer, combined with the actual financial harm to the
employees, outweighs any harm which granting preliminary
-22-
injunctive relief may cause the employer. Cf. Centro M dico, 900 __ _____________
F.2d at 454. Respondents argue that, if they are required to end
the lockout and reinstate employees at their former wage and
benefit levels, their "market share could well deteriorate
further." Respondents stress that this would be particularly
harmful if the NLRB later rules in their favor. The first answer
to this argument is that we have already upheld the district
court's determination that there is a strong likelihood that the
NLRB will not rule in respondents' favor. This finding, of
course, informs our balancing of the harms, and points in the
direction opposite to that urged by respondents. Second,
respondents' unsupported assertions regarding loss of market
share amount to nothing more than bald speculation. Finally, our
resolution of the first three factors leads to the conclusion
that the district court did not abuse its discretion in finding
that the public interest will be furthered by imposition of the
interim injunctive relief. Given the high number of employees
effected by the lockout, cf. Maram, 722 F.2d at 960, and the __ _____
potential that interim relief will have the salutary effect of
strengthening the bargaining process, see Centro M dico, 900 F.2d ___ _____________
at 455, the public interest in preliminary relief appears strong.
Contrary to respondents' assertions, we do not find that the
length of time between the filing of charges by the union and the
NLRB's application for interim was, under the circumstances, so
unreasonable as to significantly undercut the public interest in
preliminary relief.
-23-
IV. IV.
CONCLUSION CONCLUSION __________
Interim injunctive relief under 10(j) is appropriate
to restore the status quo "when the circumstances of a case
create a reasonable apprehension that the efficacy of the Board's _________________________
final order may be nullified, or the administrative procedures
will be rendered meaningless." Centro M dico, 900 F.2d at 455 _____________
(quoting Angle v. Sacks, 382 F.2d 655, 660 (10th Cir. 1967)). _____ _____
The district court did not clearly err in finding reasonable
cause to support the Regional Director's position that
respondents' committed unfair labor practices. Nor did the
district court abuse its discretion in concluding that interim
injunctive relief was just and proper. The order of the district
court is therefore affirmed. Costs to appellee. affirmed. ________
-24-
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clintons-ditch-cooperative-co-inc-petitioner-cross-respondent-v , 778 F.2d 132 ( 1985 )
National Labor Relations Board v. Palomar Corporation and ... , 465 F.2d 731 ( 1972 )
Soule Glass and Glazing Co. v. National Labor Relations ... , 652 F.2d 1055 ( 1981 )
Holyoke Visiting Nurses Association and O'COnnell ... , 11 F.3d 302 ( 1993 )
National Labor Relations Board v. Southern Beverage Company,... , 423 F.2d 720 ( 1970 )
National Labor Relations Board v. Acme Industrial Co. , 87 S. Ct. 565 ( 1967 )