Injunction Bid Backfires;Fees Awarded Against NLRB

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By Lawrence E. Dubé

May 19 — The National Labor Relations Board was not justified in pursuing a preliminary injunction against a nursing home and must pay the employer's attorneys' fees, a federal district court in Alabama has ruled.

The decision is a reminder that smaller organizations that prevail in litigation against the NLRB may have a right under federal law to seek reimbursement for their legal expenses.

Acting under the Equal Access to Justice Act, Judge Sharon Lovelace Blackburn of the U.S. District Court for the Northern District of Alabama May 18 awarded Ridgewood Health Care Center Inc. and Ridgewood Health Care Services Inc. $46,015.60 in attorneys' fees.

The companies incurred the fees in resisting the NLRB's petition for injunctive relief under Section 10(j) of the National Labor Relations Act.

Blackburn denied the injunction request last December. In her latest order, she said a fee award was appropriate. “No reasonable person, with knowledge of the facts and the law of this Circuit, would find the Director's position was substantially justified,” the court wrote.

Successorship and NLRA Violations Alleged

Ridgewood Health Care Center owned the Jasper, Ala., nursing facility but was leasing it to an independent company (Preferred) until 2013, when RHCC announced it would operate the nursing home through a related company, Ridgewood Health Care Services.

Preferred had a contract with the United Steelworkers, but Ridgewood didn't hire all of the Preferred employees and it refused to recognize the union.

The USW filed unfair labor practice charges, and the NLRB commenced administrative proceedings and filed a Section 10(j) petition for an injunction to prevent unfair labor practices pending final board action.

The NLRB argued there were serious unfair labor practices, including interrogations, unlawful statements, discrimination, the company's refusal to bargain with the Steelworkers and unilateral changes in employment conditions. However, Blackburn found the acts were not egregious enough to warrant Section 10(j) relief and she denied the petition in its entirety on Dec. 22, 2015.

Section 10(j) Bid Unjustified

Ridgewood filed a motion for attorneys' fees under EAJA, 28 U.S.C. § 2412(d)(1), and the court said a fee award was due.

It said precedent in the U.S. Court of Appeals for the Eleventh Circuit shows that a Section 10(j) injunction is an extraordinary remedy that should be issued in “very limited circumstances.”

However, Blackburn wrote, the NLRB failed to make a persuasive case based on specific evidence, and offered a “generalized argument that a § 10(j) injunction was ‘just and proper' because (1) this was a successorship case and (2) other courts had granted temporary injunctions in successorship cases.”

Stating “the mere occurrence of unfair labor practices” did not prove the need for an injunction, Blackburn said the NLRB's position in the Section 10(j) litigation was not substantially justified.

The court approved a fee award of $46,015.60 and gave the NLRB until June 7 to answer Ridgewood's request for an additional $11,054.80 in fees incurred on the EAJA motion.

Ronald W. Flowers and Matthew Scully of Burr & Forman LLP in Birmingham, Ala., represented Ridgewood Health Care Center. NLRB attorneys Lisa Y. Henderson and Jeffrey D. Williams in Atlanta represented the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at