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Osthus v. A.S.V. Inc.

United States District Court, D. Minnesota

April 2, 2015

Marlin O. Osthus, Regional Director of the Eighteenth Region of the National Labor Relations Board, Plaintiff,
v.
A.S.V. Inc., d/b/a/ Terex, Defendant, and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, AFL-CIO, Amicus.

Tyler J. Wiese, Esq., National Labor Relations Board, Region 18, Minneapolis, MN, on behalf of Plaintiff.

Charles P. Roberts, III, Esq., Constangy, Brooks & Smith, LLP, Winston Salem, NC and Michael John Moberg, Esq., Briggs & Morgan, PA, Minneapolis, MN, on behalf of Defendant.

Jason R. McClitis, Esq., Blake & Uhlig, P.A., Kansas City, KS, and Richard L. Kaspari, Esq., Metcalf, Kaspari, Engdahl & Lazarus, PA, St. Paul, MN, on behalf of Amicus.

MEMORANDUM OPINION AND ORDER

ANN D. MONTGOMERY, District Judge.

I. INTRODUCTION

This matter came before the undersigned United States District Court Judge on February 3, 2015 on the National Labor Relations Board's ("Board") Petition for Injunction under Section 10(j) of the National Labor Relations Act ("the Act") [Docket No. 1]. For the reasons discussed below, the Board's Petition is granted in part and denied in part.[1]

II. BACKGROUND

This cases arises under Section 10(j) of the Act based on alleged unlawful labor practices by A.S.V., Inc., d/b/a Terex ("Terex") managers who, according to the Board, sought to dissuade employees from voting to unionize. Administrative Law Judge David I. Goldman held hearings on the matter in November and December 2014. Judge Goldman will ultimately decide the merits of this case and his decision will be appealable to the Board only. The parties agree that a final ruling from Judge Goldman is not anticipated for quite some time. In the meantime, the Board seeks injunctive relief of a remedial bargaining order under section 10(j) of the Act, which states:

The Board shall have power, upon issuance of a complaint as provided in subsection (b) of this section charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.

29 U.S.C. ยง 160 (j).

A. The parties

Marlin Osthus, the named Plaintiff, is the Regional Director of Region 18 of the Board which investigates charges of unfair labor practices in Minnesota, Wisconsin, Iowa, North Dakota, and South Dakota. See Home, NLRB, http://www.nlrb.gov/region/minneapolis (last visited March 25, 2015).

Terex is a global lifting and material handling solutions company. See About, TEREX, http://www.terex.com/en/ (last visited March 25, 2015). Terex's factory in Grand Rapids, Minnesota manufactures compact track loaders and skid steer loaders. Pl.'s Mem. Supp. Inj. [Docket No. 15] 11.

B. Paint and assembly units seek to unionize

In January 2014, [2] Terex employees contacted representatives from the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, and the AFL-CIO ("the Union") to discuss representation. Pl.'s Mem. Supp. Inj., Ex. 2 ("ALJ Transcript") 467, 521. The paint unit and the assembly unit at Terex both sought to unionize. By May, sufficient support existed among the workers for the Union to file representation petitions with Terex's regional office. On June 18, the paint unit voted in favor of unionization. The assembly unit vote was scheduled for June 25. As of June 4, a majority of assembly unit workers (26 of 41) submitted authorization cards in support of the Union.[3] Between June 4 and June 25, Terex managers allegedly sought to dissuade the assembly unit from unionizing. On June 25, in a 26-15 vote, the assembly voted against unionizing.[4]

C. Alleged unlawful labor practices

1. Section 8(a)(1) and Section 7 of the Act

The Board alleges Terex violated both Section 8(a)(1) and 8(a)(3) of the Act, but only the 8(a)(1) violations are at issue here. Section 8(a)(1) states that it shall be an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title." Section 157 ("Section 7") states:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring ...

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