McKinney ex rel. National Labor Relations Board v. Southern Bakeries, LLC
38 F. Supp. 3d 1019
W.D. Ark.2014Background
- Southern Bakeries, LLC acquired Meyer’s Bakeries in 2005, retained most Meyer’s employees, and recognized the Bakery, Confectionary, Tobacco Workers and Grain Millers International Union, Local 111, with a CBA running Feb 8, 2010–Feb 8, 2012.
- Calderon of the Union managed the bargaining unit, handling grievances and negotiations.
- A decertification petition was filed Dec 7, 2011; the Union filed unfair-labor charges and blocked the decertification election.
- Tensions rose after the petition, including changes in Union access practices, surveillance camera installation in Jan 2013, and Union campaign speeches by management in early 2013.
- On June 2013, employees circulated a withdrawal petition with 132 signatures (majority of the 199-member unit); Ledbetter notified the Union July 3, 2013, and the Union’s access requests were denied.
- The Board investigated, filed a complaint Aug 20, 2013; ALJ decision Feb 2014 found multiple 8(a) violations; McKinney filed the 10(j) petition Feb 28, 2014 seeking injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ledbetter’s 2013 speech and actions violated 8(a)(1). | McKinney argues statements interrogated employees and threatened reprisals. | Southern Bakeries claims lawful, aimed at preventing harassment and addressing complaints. | McKinney shown likelihood of success on 8(a)(1) grounds. |
| Whether speeches and postings constituted threats of job loss or plant closure under 8(a)(1). | Ledbetter’s remarks equated unionization with job loss/closure and cited Hostess losses. | Statements were predictive opinions about consequences, not unlawful threats. | Likelihood of success on 8(a)(1) for unlawful threats established. |
| Whether statements about futility of bargaining/unionizing violated 8(a)(1). | Ledbetter suggested bargaining would be futile and benefits could be lost. | Statements reflected management opinion about bargaining outcomes. | Likelihood of success on 8(a)(1) for futility messaging established. |
| Whether promises of benefits to vote against the Union violated 8(a)(1). | Implied raises if employees voted against the Union. | Statements showed cost/benefit context of nonunion operations, not a promise. | Likelihood of success on 8(a)(1) for coercive promises established. |
| Whether installation of surveillance cameras and Union access changes violated 8(a)(5). | Cameras in break room without bargaining created surveillance impression; altered access without bargaining. | Cameras deter theft; access changes were based on past practice and security concerns. | Likelihood of success on 8(a)(5) for both surveillance and access-change issues. |
Key Cases Cited
- NLRB v. Gissel Packing Co., 395 U.S. 575 (Supreme Court 1969) (employer predictions about consequences must be based on objective facts)
- NLRB v. Chem Fab Corp., 691 F.2d 1252 (8th Cir. 1982) (creation of an impression of surveillance violates 8(a)(1))
- Earthgrains Co., 336 NLRB 1119 (NLRB 2001) (statements about bargaining could be threats if they imply loss of benefits)
- Sears, Roebuck & Co., 305 NLRB 193 (NLRB 1991) (disparagement alone is not a violation unless paired with coercive threats)
- Westwood Health Care Center, 330 NLRB 935 (NLRB 2000) (totality of circumstances governs interrogation analysis)
- Nortech, 336 NLRB 554 (NLRB 2001) (surveillance/usage of cameras without bargaining violates 8(a)(5))
- Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109 (8th Cir. 1981) (Dataphase factors govern 10(j) preliminary injunctions)
- Paulsen v. Renaissance Equity Holdings, LLC, 849 F. Supp. 2d 335 (S.D.N.Y. 2012) (delay in filing 10(j) action does not defeat irreparable harm)