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Calatrello v. Carriage Inn of Cadiz

November 6, 2006

FREDERICK J. CALATRELLO PETITIONER,
v.
CARRIAGE INN OF CADIZ RESPONDENT.



The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge Terrence P. Kemp

OPINION & ORDER

This matter is before the Court for consideration of a Petition For Injunction Under Section 10(j) of The National Labor Relations Act, As Amended ("NLRA") filed by Petitioner, Frederick J. Calatrello, Regional Director for Region 8 of the National Labor Relations Board ("the Board") of behalf of the board (Doc. # 2), Petitioner's Supplemental Memorandum In Support (Doc. # 11), A Memorandum in Opposition filed by Respondent Carriage Inn of Cadiz (Doc. # 18), and a Reply Memorandum. (Doc. # 22.) For the reasons that follow, this Court GRANTS Petitioner's request for injunctive relief.

Issues Presented

This case presents the following issues to the Court: (1) is there reasonable cause to believe that Respondent has violated the NLRA; and (2) is it just and proper to grant a temporary injunction in order to preserve the status quo prior to the alleged unfair labor practices.

Summary of Facts

This Court will set forth only the facts of this case that are material to disposing of the relevant issues at hand. Respondent operates and manages a nursing facility in Cadiz, Ohio. In November of 1992, the Board certified United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC ("the Union") as the exclusive bargaining representative of the employees in the bargaining unit. From the Union's certification until on or about January 23, 2006 Respondent recognized and bargained with the Union exclusively. The most recent collective bargaining agreement between the Union and Respondent was effective from November 10, 2002 to November 10, 2005. Respondent and the Union were negotiating for a new bargaining agreement from October 13, 2005 to January 17, 2006. By a letter dated January 23, 2006 Respondent notified Petitioner of its intent to withdraw its recognition from the Union as of January 27, 2006 based on an exchange at the bargaining table that took place on January 17, 2006.

On January 17, 2006 the Union calculated an economic proposal regarding wage increases based on the 24 of the 82 bargaining unit members who had authorized dues checkoff. Union President Brookins testified that he completed the calculations based on the 24 employees that the Union knew were members. Respondent's President Bernsen asserted that in the event the Union only represented 24 employees then it did not represent a majority of workers. Santoro, a staff representative for the Union, then testified that he immediately stated that the Union represented all of the bargaining unit employees. Respondent told the Union that it had to offer affirmative proof of its majority status by January 27, 2006 otherwise it would withdraw its recognition. As of January 27, 2006 Petitioner did not fulfill Respondent's request. Subsequently, Bernsen testified that he based the decision to withdraw Respondent's recognition on three reasons: (1) he characterized Brookins statement on January 17,2006 as an admission that Union represented only 24 employees and therefore had lost its majority support; (2) the Union did not prove its majority status by January 27, 2006 as Respondent requested; and (3) upon review of Respondent's payroll records, it determined that only 24 employees had authorized dues check off.

AfterRespondent withdrew recognition from the Union, the Union's President on January 30, 2006 stated that " [t]here are only about 24 union members in the Cadiz Carriage Inn unit. We have not represented a majority of the Unit there for about 3 1/2 years. . . ." Also, the Union voluntarily collected authorization cards between January and March of 2006. Then, in its letter dated March 21, 2006, the Union renewed its demand for continued recognition, offered to show proof of majority status to Respondent, and requested that Respondent resume bargaining. Although Respondent recognizes that facially the number of authorization cards constitute a slight majority of unit employees, Respondent has asserted its doubt that the Union did indeed enjoy majority support and questioned the authenticity of the Union's proof. (Doc. # 18 at p. 4 n.7; G.C. Exh. 7.) Consequently, based on its suspicions, Respondent has refused to rely on the purported evidence and to the present date has refused to recognize the Union and resume bargaining.

The Union then filed charges with the Board on March 24, 2006 alleging that Respondent engaged in, and is engaging in, unfair labor practices within the meaning of § 8(a)(1) and 8(a)(5) of the NLRA. On or about March 27, 2006, Respondent unilaterally announced by notice to employees that bargaining unit employees would receive a four percent wage increase retroactive to November 10, 2005. Finally, General Counsel of the Board, on behalf of the Board, issued a Complaint and Notice of a hearing on May 31, 2006.

As a result, Petitioner seeks injunctive relief pursuant to Section 10(j) of the NLRA. 29 U.S.C. § 160(j). Specifically, Petitioner seeks an injunction to prevent Respondent from withdrawing its recognition from the Union as the certified exclusive collective bargaining representative of Respondent's employees and from refusing to recognize and bargain with the Union. Consistent with Sixth Circuit precedent and the Local Rules, this Court GRANTS Petitioner's request that this Court adjudicate its § 10(j) petition solely on the basis of the administrative record.*fn1

Standard of Review

Normally, labor disputes are resolved through administrative procedures and, when necessary, enforced by the courts of appeals. Kobell v. United Paperworkers Int'l. Union, 965 F.2d 1401, 1406 (6th Cir. 1992). Section 10(j) of NLRA provides the Board with the ability to petition a district court to enjoin allegedly unfair labor practices in order to preserve the status quo pending the Board's substantive review of those practices. 29 U.S.C. § 160(j); see Kobell, 965 F.2d at 1406. The Sixth Circuit has stated that before a district court may issue a temporary injunction under 10(j), the court must make two findings. Kobell, 965 F.2d at 1406. First, the court must determine whether there is a "reasonable cause to believe" that the respondent has violated the NLRA and second, whether temporary injunctive relief is "just and proper." Id.*fn2 If the court answers in the negative either of these inquires then the petition must be denied. See id. The reasonable cause to believe standard is to be determined from the prospective of the Regional Director who is the Petitioner in this matter.

The Sixth Circuit has emphasized that to establish reasonable cause the Petitioner bears a "relatively insubstantial" burden. Kobell, 965 F.2d at 1406 (quoting Gottfried v. Frankel, 818 F.2d 485, 493 (6th Cir. 1987)). Petitioner's burden is to show that the Board's legal theory of liability is substantial and not frivolous. Id. Petitioner does not have to prove a violation of the NLRA occurred or convince the Court of the validity of his or her theory as long the theory has substantiality. Id. This question is essentially one of law, and, in answering the question, a district court "need not concern itself with resolving conflicting evidence if facts exist which could support the Board's theory of liability." Kobell, 965 F.2d at 1406 (quoting Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d 26, 29 (6th Cir. 1988)). Thus, as long as Petitioner presents any evidence that supports his or her theory, conflicting evidence does not preclude this Court from finding that "reasonable cause" exists. See Schaub v. W. Michigan Plumbing and Heating, Inc., ...


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