714 F.3d 1244
11th Cir.2013Background
- NLRB seeks temporary reinstatement for six Mardi Gras employees discharged during a union organize drive with UNITE HERE Local 355.
- Mardi Gras had a Memorandum of Agreement in 2004 to take a neutral approach and recognize the Union if cards showed a majority; MOA expired Dec 31, 2011.
- By Fall 2011 the Union campaigned; by Nov 10 2011 80 of 92 authorization cards were returned, with additional cards later; majority still not achieved.
- Discharges occurred on Nov 18, 21, and 23, 2011, largely after unannounced Union visits; security asked Union to leave and police were called on one occasion.
- District court denied temporary reinstatement, holding the movant Board must show just and proper relief; court found the Union’s campaign had cooled before discharges and that delay undermined effectiveness.
- NLRB petitioned under § 10(j); district court applied two-part test and concluded reinstatement was not just and proper; this Court reviews for abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reinstatement was just and proper under § 10(j). | NLRB argues ongoing union threat and need to preserve remedial purposes justify reinstatement. | Mardi Gras contends campaign cooled before discharges and delay intra-advocates, making reinstatement unnecessary and ineffective. | District court did not abuse discretion; reinstatement not just and proper. |
| Whether district court properly weighed evidence of the union drive’s status and delay in petitioning. | NLRB contends evidence supports ongoing harm and that delays do not negate need for relief. | Mardi Gras argues evidence shows campaign fading and delay undermines likelihood of effectiveness of relief. | Court affirmed district court's factual findings and discretion. |
Key Cases Cited
- Arlook v. S. Lichtenberg & Co., Inc., 952 F.2d 367 (11th Cir. 1992) (two-prong § 10(j) test; just and proper relief)
- Pilot Freight Carriers, Inc., 515 F.2d 1188 (5th Cir. 1975) (§ 10(j) historic purpose; extraordinary remedy)
- Vibra Screw, Inc. v. PIE* Nationwide, Inc., 904 F.2d 881 (3d Cir. 1990) (ongoing harm considerations; remedial scope)
- Pascarell v. Vibra Screw, Inc., 904 F.2d 874 (3d Cir. 1990) (factors for § 10(j) relief)
- Szabo v. PIE* Nationwide, Inc., 878 F.2d 207 (7th Cir. 1989) (scope of temporary relief; high-level standard)
- Anderson v. Bessemer City, 470 U.S. 564 (U.S. 1985) (clearly erroneous standard for factual findings)
- Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185 (5th Cir. 1975) (reinstatement as extraordinary remedy; sparing use)