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Ohr v. Latino Express, Inc.

United States Court of Appeals, Seventh Circuit

January 12, 2015

PETER S. OHR, Regional Director of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellee,
v.
LATINO EXPRESS, INC., Respondent-Appellant

Argued September 19, 2014.

Page 470

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11-C-2383 -- John F. Grady, Judge.

For PETER S. OHR, Regional Director of Region 13 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner - Appellee: Elinor L. Merberg, Attorney, Attorney, Laura T. Vazquez, Attorney, National Labor Relations Board, Injunction Litigation Branch, Washington, DC; David Hitoshi Mori, National Labor Relations Board, Appellate Court Branch, Washington, DC.

For Latino Express, Incorporated, Respondent - Appellant: Andre Ordeanu, Attorney, Zane D. Smith, Attorney, Zane D. Smith & Associates, Ltd, Chicago, IL.

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

OPINION

Page 471

Rovner, Circuit Judge.

Latino Express, Inc. appeals a district court order finding the company in civil contempt of an earlier order granting injunctive relief to the plaintiff, Peter Ohr, the Regional Director (" Director" ) of the National Labor Relations Board (" Board" ) on behalf of the Board. That underlying order sought to address Latino Express's violations of the National Labor Relations Act (" Act" ) as its employees attempted to certify a union.

I.

Because this appeal stems from a finding of civil contempt of an injunctive order of the district court, the only relevant facts are those regarding the enjoined party's actions or lack thereof following the issuance of that first order. Nevertheless, the brief rendition of the facts leading to the underlying order will help round out an understanding of the case.

Carol Garcia and Peter Salgado, bus drivers for the transportation company, Latino Express, thought they might improve their working conditions through the help of the Teamsters Local Union No. 777 (" Union" ). Toward that end, the two employees, along with some co-workers, began soliciting signatures from other drivers to certify the Union as the official representative of the employees. Garcia and Salgado met with resistance from the company owners and managers who began efforts to undermine the Union activity and the two employees were eventually terminated.

Garcia and Salgado filed claims with the Board alleging that Latino Express had violated § § 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3) by interfering with their union organizing activities. A fuller description of that interference can be found in the district court's opinion in Barker ex rel. Nat'l Labor Relations Bd. v. Latino Express, Inc., No. 11-C-2383, 2012 WL 1339624, at *1-3 (N.D.Ill. April 18, 2012),

Page 472

(R. 38, pp.1-11).[1]

The Regional Director of the NLRB petitioned the district court for interim injunctive relief under section 10(j) of the Act, which allows the Director to request from a local district court temporary relief from an unfair labor practice pending the Board's remedial action. Harrell ex rel. NLRB v. Am. Red Cross, Heart of Am. Blood Servs. Region, 714 F.3d 553, 556 (7th Cir.), cert. denied 134 S.Ct. 437, 187 L.Ed.2d 284 (2013); 29 U.S.C. 160(j). More precisely, section 10(j) directs district courts to grant relief that is " just and proper," meaning that (1) the Board has no adequate remedy at law; (2) the union will be irreparably harmed without interim relief, and that potential harm to the union outweighs potential harm to the employer; (3) public harm would occur without the relief; and (4) the Board has a reasonable likelihood of prevailing. Id. The idea underpinning 10(j) is that a district court can issue a speedy preliminary injunction to protect a union where the effective enforcement of the NLRA is threatened by the delays inherent in the NLRB dispute resolution process Lineback ex. rel. NLRB v. Irving Ready--Mix, Inc., 653 F.3d 566, 570 (7th Cir. 2011).

The Director's petition for injunctive relief in this case alleged that the Board would likely rule that Latino violated the Act by (1) creating the impression that the employee's union and/or other concerted activities were under surveillance; (2) promising and granting employees improved benefits in response to a union organizing campaign; (3) instructing employees not to speak with each other about the company's accident reimbursement policy; (4) announcing to its employees that union representation was never going to happen at the facility; (5) interrogating employees about their union activity and threatening to discharge them; and (6) soliciting grievances from employees in response to a union organizing campaign. The Director also requested interim reinstatement for employees Garcia and Salgado arguing that all of the interim relief would prevent irreparable harm to the employees' bargaining rights and preserve the remedial power of the Board. The district court agreed and granted preliminary injunctive relief on April 18, 2012, enjoining Latino Express from the following prohibited activities:

(a) discharging or otherwise discriminating against employees for supporting the Union;

Page 473

(b) coercively questioning employees about their union support or activities; (c) prohibiting employees from discussing with their co-workers issues related to their terms and conditions of employment; (d) creating the impression that employees' union activities are under surveillance; (e) promising improved benefits to employees or soliciting grievances from them in order to discourage union support; (f) threatening to discharge employees or to close the company's facility in response to their union activities; (g) warning employees that it would be futile to engage in union activities; and (h) in any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

Latino Express, Inc., 2012 WL 1339624, at *12 (April 18, 2012) (R. 38, pp.35-36). The Director also successfully requested that the district court require Latino Express to take the following affirmative actions:

(a) within five days of our order, reinstate Carol Garcia and Pedro Salgado to their former positions; (b) temporarily remove from its files any references to the unlawful discharges of Carol Garcia and Pedro Garcia and, within three days thereafter, notify each of them in writing that this has been done and that the discharges will not be used against them in any way prior to a final Board order; (c) within five days of our order, post a copy of the order, together with a Spanish language translation prepared at Latino Express's expense, to be approved by the Director, at Latino Express's facility where notices to employees are customarily posted, maintain the posting during the Board's administrative proceedings, and take reasonable steps to ensure that the order is not altered, defaced, or covered by any other material, and grant agents of the Board reasonable access to the facility to monitor compliance with the posting requirement; (d) within 21 days after we issue our order, file a sworn affidavit with this court from a ...

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