On May 27, 2014, a a judge from the U.S. Discrict Court for Arizona granted a Petition for Temporary Injunction in Overstreet v. Gunderson Rail Services LLC under Section 10(j) of the National Labor Relations Act. The Court found that NLRB Regional Director Cornele A. Overstreet was likely to succeed in showing that Respondent Greenbrier Rail Services (Greenbrier) had violated the NLRA by engaging in a broad and sustained campaign to prevent employees at its Tuscon facililty from joining a union. The Court found that several different actions by the company were in violation of the NLRA, and that the Court must “take into account the probability that declining to issue the injunction will permit the alleged unfair labor practices to reach fruition and thereby render meaningless the Board’s remedial authority.” In the end the Court determined that the appropriate remedy under Section 10(j) was to “take measures designed to recreate the conditions and relationships that would have been had there been no unfair labor practices;” thus, the Order requires the company to do things like rehire employees who had been laid off, re-open its Tuscon facility, attempt to restore its business relationship with customers, and undertake collective bargianing with the union.
The Court found that the Petitioner “has shown that he is likely to prevail on his position” regarding several allegations regarding illegal union-busting activities, including:
1. Laying off 1/3 of its Tucson workforce in response to union activities:
The Court found that the Petitioner had “met his burden to show that the 11/12/12 layoff was motivated by anti-union animus. Greenbrier’s Tucson employees had been attempting to unionize for an extended period of time…;” employees had “received written discipline for soliciting coworkers about the UTU during work hours,” although other forms of solicitation were always allowed; one employee was “told to stay away from two employees involved with the Union, and that Greenbrier was going to get rid of those two employees;” and management held meetings with employees in which they expressed their oppositing to the UTU and stated that unionization could result in closure of the Tucson plant, layoffs, and transfer of employees to other states.” The UTU subsequently lost the union election by three votes.
According to the legal test used by the Court, the company’s burden was to show that these layoffs would have occurred absent union organizing by employees. On this issue the Petitioner argued, and again the Court agreed, that there was good reason to believe the reasons given by the company for the layoffs were pretextual. The Tucson facilty was not especially unprofitable compared to other units of the company; managers gave vague or inconsistent explanations of the layoffs; the company had been hiring new workers before suddenly laying off a third of its Tuscon staff following unionization efforts resumed there; the layoffs were not based on the company’s judgements about seniority or skill but personal judgment by one manager; and the company suspiciously turned around and rehired many of the workers who had just been laid off for “performance reasons.”
2. Closing its Tucson facility without adequate justification:
Just after receiving notice of another upcoming union election, Greenbrier “proposed a large rate increase of approximately 18% to its largest Tucson customer,” TTX, thus intentionally causing TTX to redirect its business to other Greenbrier facilities at other locations. Management then began planning for the closure of the Tucson plant, ostensibly because of this large loss of revenue. Again, the question for the Court is whether the company would have done this in the absence of union activity; based in part on internal communications indicating that Greehbrier managers had linked unionization to the TRX rate hike and the anticipated closure of the plant, and the Court concluded that closure would have been unlikely. In short, the Court agreed with the Petitioner that the company was most likely closing the Tucson plant in order to prevent employees at that location from unionizing.
3. Termining an employee, Juan Silva, for supporting the union:
Officially, Silva was terminated because he had violated the company’s safety policy, but further investigation revealed that his actions were not unusual and had never resulted in termination for other employees in the past.
4. Interrogating and created the impression of surveillance of employees by management regarding union organizing activity:
For example, one employee who had been leading organization efforts, and had been disciplined for those activities in the past, was asked daily by his Foreman whether the union “was coming around again.”
5. Promising and granting benefits in order to “dissuad(e) union activity in violation of the Act:”
Just a few days after their layoffs in Tucson, Greenbrier announced that it would “zero out” all employees’ attendance points, effectively giving each of them “a totlaly clean slate as to attendance issues.” The decision to do this was made just after the union election petition was filed in November of 2012, and the company explained to employees that the rollback of attendance points was “an example of how employees benefitted from Grenbrier’s flexibility to implement such actions, and that a union could hamper such flexibility.” Employee attendance points had never been rolled back before.
Greenbrier also implemented an unprecedented “safety poker”program, in which employees who followed safety procedures won cards, and then those with the best poker hands won prizes like iPads or tools. This was the first safety initiative by Greenbrier that involved giving prizes, and it ended just after the July 2013 union election.
6. Soliciting employee complaints and grievances:
Just before the July 2013 election, Greenbrier distributed an employee satisfaction survey at its Tucson plant. The company argued that the idea for the survey came from one of its managers who had take a psychology class, but neither that manager nor the Tucson plant had ever conducted such a survey before. It seems clearly designed to discourage union activity by convincing employees that the company intended to investigate and remedy employees’ complaints about working conditions.
7. Threatening employees with loss of their jobs, plant closure, or other adverse actions:
Just before the July 2013 union elections, the company held “captive-audience meetings” in which it told employees that its principal customer, TTX, was adverse to unions and would “stop sending rail cars to Tucson if it unionized.” Upper management from TTX explicitly denied these claims. Such predictions are generally little more than threats, and their illegal use is extremely common as is shown in the Court’s citation of a long list of similar cases in which companies gave employees general predictions about the future of their business in the context of a discussion about their choices about whether to unionize.
8. Refusing to bargain collectively with employees’ union representatives:
Since NLRB v. Gissel Packing Co., Inc., Section 8(a)(5) of the NLRA requires companies to bargain with employees’ labor representatives once a majority of them have signed union authorization cards reflecting majority support for the union, “even when employees have not chosen union representation through the normal election procedure.” In this case, the Sheet Metal Workers Union had obtained authorization from 50 of the 92 workers at the Tucson plant, making them the employees’ official representative and obligating the company to bargain with the Union, which the company refused to do.
To summarize, then: Greenbrier put a great deal of effort into breaking the nascent union at its Tucson plant and ultimately did so. But the Court found that the actions through which it accomplished this were in violation of the NLRA, and that the law requires them to cease those actions and take steps to reverse their effects. Greenbrier intentionally damaged and killed the Tucson arm of its company in order to prevent workers from joining a union, and in so doing deprived hundreds of workers of their jobs. The Court was not impressed by their reason for doing this, and ordered the company to clean up its mess.
If you believe your rights under the National Labor Relations Act have been violated, please contact The Harman Firm, LLP.