Court Won't End Injunction Against Kellogg; NLRB Still Reviewing Lockout-Related Claims

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By Lawrence E. Dubé

Oct. 6 — A federal district court in Tennessee Oct. 2 refused to dissolve a preliminary injunction against Kellogg Co., finding that an administrative law judge's rejection of unfair labor practice allegations did not require lifting the injunction before the National Labor Relations Board completes its consideration of the case.

Judge Samuel H. Mays of the U.S. District Court for the Western District of Tennessee found in July there was reasonable cause to believe Kellogg illegally locked out more than 200 union-represented workers, and he granted the NLRB a preliminary injunction to prevent further violations of the National Labor Relations Act. However, a week later, an ALJ mostly dismissed a related unfair labor practice charge, finding that the lockout was lawful.

Mays said the ALJ's conclusion did not show that the NLRB's lockout allegations were frivolous, and did not undermine the agency's argument that some injunctive relief should remain in effect until the board completes its review of the case. The court modified the injunction, but declined to dissolve it.

NLRB Won Injunction in Memphis Lockout Case

The court's July injunction followed a lengthy lockout at Kellogg's Memphis plant, where workers are represented by Bakery, Confectionery, Tobacco Workers and Grain Millers Local 252G. The lockout began in October 2013 after the company and the union were unable to reach a new collective bargaining agreement (27 LRW 2070, 10/30/13).

Acting on an unfair labor practice charge filed by the union, an NLRB regional director issued an administrative complaint in March (28 LRW 679, 4/2/14), alleging the company violated sections 8(a)(1) and (5) of the NLRA by failing to bargain collectively and in good faith with the union and illegally locked out workers after creating a negotiating impasse.

The NLRB petitioned the court for relief under NLRA Section 10(j), which authorizes a federal court to grant a preliminary injunction until the board reaches a final decision in an administrative case. Mays found that there was “significant evidence” to support the NLRB regional director's theory that Kellogg illegally forced an impasse and imposed a lockout, and he granted Section 10(j) relief (28 LRW 1681, 8/6/14).

Impact of Adverse ALJ Decision in Question

But an ALJ concluded Aug. 7 that while Kellogg withheld some information from the union in violation of the NLRA, its announcement and conduct of the lockout was lawful and did not violate the federal labor law.

The lockout ended about a week after the ALJ's ruling, when the BCTGM-represented employees returned to work (28 LRW 1731, 8/13/14).

Kellogg filed an Aug. 19 motion asking the court to dissolve, modify or stay the Section 10(j) injunction.

The company argued that the NLRB's theory of its case could no longer be considered substantial after the ALJ's rejection, but Mays disagreed.

Injunction in Force Until Final Board Action

Courts are divided on the standards in Section 10(j) cases as well as how much deference to give ALJ findings, but Mays said he found reasonable cause for an injunction before the ALJ even ruled, and he was still satisfied injunctive relief was proper.

Citing Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d 26, 129 LRRM 2660 (6th Cir. 1988), the court said, “Section 10(j) authorizes injunctive relief pending final Board adjudication.” The ALJ decision, which is now under review by the board, was not a final agency action and did not support dissolving the injunction, the court held.

Mays dissolved a provision in his injunction that would have required the company to offer interim reinstatement to employees during the pendency of NLRB proceedings, but left intact orders that the company refrain from unlawful bargaining as well as locking out employees in furtherance of unlawful bargaining positions.

Kellogg was represented by Baker, Donelson, Bearman, Caldwell & Berkowitz P.C. and Miller Johnson. NLRB attorneys represented the board. The BCTGM and Local 252-G were represented by Bredhoff & Kaiser PLLC and Godwin, Morris, Laurenzi & Bloomfield.

Text of the opinion is available at