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McKinney v. Citmed Corp.

United States District Court, S.D. Alabama, Southern Division

June 2, 2017

M. KATHLEEN McKINNEY, Regional Director of Region 15 of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
CITMED CORPORATION, Respondent.

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.

         This action is before the Court on the Petition for Temporary Injunction pursuant to Section 10(j) of the National Labor Relations Act, as amended, and supporting documents (doc. 1). Upon consideration, and for the reasons set forth herein, the Petition is DENIED.

         I. Background

         Defendant Citmed Corporation manufactures and distributes absorbent tipped applicators and wooden disposable medical products in Citronelle, Alabama. Sixteen Citmed machinists were suspended from work following a concerted work stoppage that occurred September 22, 2016. The employees engaged in concerted activities for the purpose of mutual aid and protection by engaging in a walk out to protest new work rules and the failure of the Vice President to meet with them regarding the new rules. Specifically, past policy did not require employees to clock out for breaks or lunch, but in the future they would be required to clock out. That same day, after notice from the supervisor, the President and Vice President decided to suspend these sixteen employees, plus two other employees, from work on Monday, September 26, 2016. The supervisor and another employee informed the employees of the suspension. Respondent applied its “call in” policy to suspend the employees. The policy required employees to call in before missing work, and if an employee failed to do so, they were suspended from the next day of work.

         The employees then decided to set up a picket line on Monday, September 26, 2016, their day of suspension, to protest their treatment. The picket began at 7:00 a.m. and continued through Tuesday, September 27, 2016. However, two employees returned to work on Tuesday. Although the day is in dispute, on either Monday or Tuesday, the employees spoke with the Vice President regarding their concerns with the new clock out policy. They also asked for a $1.00 per hour raise. The Vice President discussed this with the President and informed the picketers that Citmed would offer a $.50 per hour raise, if production increased. On Wednesday, September 28, 2016, the sixteen employees returned to work and found that their time cards were not available. Upon inquiry, the Vice President told the employees that they had been fired. Except for two employees, Respondent declined the employees' unconditional offers to return to work in their former positions.

         On October 21, 2016, an employee filed a charge with the National Labor Relations Board alleging that on September 28, 2016, Respondent had discharged the charging party and other employees in retaliation for their protected concerted activities. The charge was amended twice, with the final amendment on February 8, 2017. Upon investigation, Petitioner found reasonable cause to believe, as alleged in the third amended charge, that Respondent engaged in and continued to engage in unfair labor practices within the meaning of Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1).

         On March 20, 2017, Petitioner issued a Complaint and Notice of Hearing against Respondent pursuant to Section 10(b) of the Act. The Notice provided that the hearing was set for July 10, 2017 before an Administrative Law Judge of the Board. On May 8, 2017, Petitioner issued an Amended Complaint and Notice of Hearing. In the Amended Notice, the hearing was re-scheduled for May 31, 2017. However, Respondent moved to continue the unilateral trial acceleration. The motion was granted over Petitioner's objection. The hearing was scheduled for July 10, 2017.

         Petitioner has now filed her complaint seeking temporary injunctive relief pursuant to 29 U.S.C. § 160(j). Petitioner alleges that she is likely to succeed in establishing the allegations set forth in the Amended Complaint including the allegations that “Respondent violated Section 8(a)(1) of the Act by (a) using against its employees who engaged in the protected concerted activity of a work stoppage a rule that employees who miss work without “calling in” will be suspended, (b) suspending or otherwise discriminating against employees because they engaged in protected concerted activities for the purpose of mutual aid and protection; and (c) discharging or otherwise discriminating against employees because they engaged in concerted activities for the purpose of mutual aid and protection.” (Doc. 1, p. 4) Petitioner also alleges that she is likely to succeed in proving that the Respondent's conduct has interfered with, restrained, and coerced the employees in their exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1). (Id. at p. 8)

         Petitioner asks the court to order immediate injunctive relief requiring the Respondents to cease and desist from the following acts, pending final disposition by the Board:

(a) Applying to its employees who engage in protected concerted activity a rule that employees who miss work without calling in will be suspended;
(b) Suspending its employees, or otherwise discriminating against its employees, because of their protected concerted activity;
(c) Discharging its employees, or otherwise discriminating against its employees, because of their protected concerted activity;
(d) In any other manner, interfering with, restraining, or coercing employees in the exercise of their rights guaranteed ...

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