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McKinney ex rel. National Labor Relations Board v. Creative Vision Res., L.L.C.

United States Court of Appeals, Fifth Circuit

April 13, 2015

M. KATHLEEN MCKINNEY, Regional Director of Region Fifteen of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Plaintiff - Appellee
v.
CREATIVE VISION RESOURCES, L.L.C., Defendant - Appellant

Appeal from the United States District Court for the Eastern District of Louisiana.

For M. KATHLEEN MCKINNEY, Regional Director of Region Fifteen of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Plaintiff - Appellee: Laura T. Vazquez, Deputy Assistant General Counsel, Elinor Louise Merberg, Assistant General Counsel, Kyle Andrew Mohr, National Labor Relations Board, Injunction Litigation Branch, Washington, DC; M. Kathleen McKinney, National Labor Relations Board, New Orleans, LA.

For CREATIVE VISION RESOURCES, L.L.C., Defendant - Appellant: Clyde H. Jacob, III, Esq., Walter W. Christy, Coats, Rose, Yale, Ryman & Lee, P.C., New Orleans, LA.

Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.

OPINION

Page 294

E. GRADY JOLLY, Circuit Judge:

This appeal presents the question of whether a district court abuses its discretion by granting injunctive relief under § 10(j) of the National Labor Relations Act (" NLRA" ), 29 U.S.C. § 160(j), absent specific findings that the enjoined conduct was egregious or otherwise exceptional. M. Kathleen McKinney, the National Labor Relations Board's regional director, sought and obtained a temporary injunction requiring Creative Vision Resources, L.L.C., to negotiate and bargain in good faith with a labor union.[1] Creative Vision appeals the district court's grant of injunctive relief, arguing that such relief was not

Page 295

equitably necessary under the circumstances of this case.

We conclude that the district court abused its discretion because it ordered injunctive relief supported only by general findings of harm that do not evince exceptional or egregious conduct or harms in the context of the NLRA. Nor did the district court address adequately the effect of the excessive passage of time between the onset of the alleged wrongful activities and the issuance of the injunction. The district court's order enjoined conduct in 2014 in an attempt to preserve a status quo as it existed in 2011. Because we conclude that the district court's findings are insufficient, we VACATE the district court's order issuing injunctive relief and REMAND the case.

I.

The relevant facts in this case are materially undisputed and relate to a work force of " hoppers," persons who work on the back end of garbage trucks. The hoppers here are supplied by appellant Creative Vision to a waste disposal company called Richard's Disposal, Inc., in New Orleans, Louisiana.

In August 2005, Richard's entered into a contract with a company called Berry to provide hoppers for its garbage trucks.[2] Local 100, Service Employees International Union (" SEIU" ), a labor union, represented Berry's hoppers in their collective bargaining agreements between 2007 and 2009. Local 100 disaffiliated from SEIU in October 2009, but it continued to represent the hoppers as Local 100, United Labor Unions.[3]

In 2010, Alvin Richard III, the son of the owner of Richard's and an executive of Richard's, formed Creative Vision, apparently to provide hoppers to Richard's. Creative Vision distributed hiring applications to the Berry hoppers who worked for Richard's in May 2011, and on June 1, 2011, Richard's informed Berry that it no longer needed Berry's services. Beginning on June 2, 2011, Creative Vision supplied the hoppers for Richard's garbage trucks. Creative Vision employed the same hoppers as Berry--at least forty-three of the forty-four hoppers had been employed by Berry and had been represented by Local 100.

After Creative Vision began servicing Richard's trucks, Local 100 contacted Creative Vision, asking that it recognize and bargain with Local 100 as the exclusive representative of Creative Vision's hoppers. According to Local 100, Creative Vision is a successor to Berry, and, as such, Creative Vision is required to bargain with the union. Local 100 claims that Creative Vision refused to recognize or bargain with it, and it filed an unfair labor practice charge against Creative Vision on June 17, 2011, alleging violations of the NLRA. The NLRB investigated and issued an administrative complaint against Creative Vision on March 30, 2012. The parties then prepared for a trial on the allegations before an administrative law judge (" ALJ" ).[4]

On July 25, 2012, however, the NLRB also filed a petition for injunctive relief in

Page 296

the federal district court. In the petition, the NLRB sought to enjoin Creative Vision to recognize and bargain in good faith with Local 100 based on the allegations before the ALJ. The petition lingered in the federal district court for almost two years.

While the petition was pending in the district court, a number of events occurred in the administrative proceedings before the NLRB. The ALJ issued a decision siding with the NLRB on some of the claims against Creative Vision on January 7, 2013. The district court placed the ALJ's decision into the record on January 24, 2013. Creative Vision and the NLRB filed exceptions to the ALJ's ruling, ...


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