GOONAN v. AMERINOX PROCESSING, INC.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

THOMAS A. GOONAN,

Regional Director of the 1:21-cv-11773-NLH-KMW

Fourth Region of the NATIONAL

LABOR RELATIONS BOARD, for OPINION

and on behalf of the NATIONAL

LABOR RELATIONS BOARD,

Petitioner,

v.

AMERINOX PROCESSING, INC.,

Amerinox.

UNITED STATES OF AMERICA,

Intervenor.

APPEARANCES:

Lea F. Alvo-Sadiky

Alvina Swati

National Labor Relations Board

Fourth Region

100 Penn Square East, Suite 403

Philadelphia, PA 19107

On behalf of Petitioner

Daniel V. Johns

Kelly T. Kindig

Cozen O’Connor

457 Haddonfield Road

Suite 300

Cherry Hill, NJ 08002

On behalf of Respondent

Christopher D. Dodge

Zachary A. Avallone

Trial Attorneys

United States Department of Justice Civil Division

Federal Programs Branch 1100 L Street NW

Washington, DC 20005

On behalf of the United States

HILLMAN, District Judge

Presently before the Court is the petition of Thomas A.

Goonan, Regional Director of the Fourth Region of the National

Labor Relations Board (“Board”), brought pursuant to Section

10(j) of the National Labor Relations Act, as amended, 29 U.S.C.

§ 160(j),1 for injunctive relief pending the final disposition of

the matters pending before the Board on charges against Amerinox

Processing, Inc. The Board contends that Amerinox has engaged

in, and is currently engaging in, conduct in violation of

Section 8(a)(1) and (3) of the Act regarding interference with

union activities.

The United States has intervened in this action because of

a discrete issue raised by Amerinox in its opposition to the

Board’s petition. The Court held argument on June 25, 2021, and

permitted supplemental briefing.

1 Legislative history and case precedent commonly refer to this

section as Section 10(j). Likewise, 29 U.S.C. §§ 157–159 and

their subparts are referred to as Sections 7 through 9.

For the reasons expressed at the June 25, 2021 hearing, and

for the reasons set forth below, the Court will grant the

Board’s petition.

BACKGROUND2

Amerinox is a New Jersey corporation that maintains a

facility in Camden, New Jersey, where it processes stainless

steel and aluminum by cutting and polishing coils for customers

based on particular specifications. In April 2018, Amerinox’s

employees began an organizing campaign seeking representation by

the International Association of Sheet Metal, Air, Rail &

Transportation Workers, Sheet Metal Workers Local 19 (“Union”).

At that time, the Board contended that Amerinox coerced

employees, discharged union supporters, made unlawful

statements, and successfully quashed support for the Union. The

Board further contended that Amerinox’s actions interfered with

employee free choice in the union representation petition and

the Board set aside the election results. Amerinox’s conduct

led to a series of administrative complaints and settlement

agreements. The last of these was a Formal Settlement approved

by the Board on February 4, 2020.

2 The Court recites the background facts from the Board’s amended

petition (Docket No. 14, 15), its brief in support of its

petition (Docket No. 3), and Amerinox’s brief in opposition

(Docket No. 26).

The Third Circuit enforced the Formal Settlement on April

23, 2020 (Circuit No. 20-1503). As part of the Formal

Settlement, the election conducted in Case 04-RC-223800 was set

aside and provisions were made for a re-run election. Prior to

the scheduling of that election, on May 4, 2020, the Union

requested to withdraw its election petition. The Board contends

that it was partly because of the COVID-19 pandemic and partly

because the Union believed that employees would be unwilling to

vote for the Union at that time due to Amerinox’s prior actions.

The Board approved the withdrawal.

The Board represents that in October 2020, the Union

resumed its campaign to organize employees. Eight employees

signed Union authorization cards as of October 19, 2020.3 The

Board contends that on that same date, Amerinox forcefully

responded to the effort by discharging two main Union adherents

- Kyle George and Miguel Gonzalez - and laying off four

employees - Andrew Rodriguez, Keon Smith, Joseph Soto, and

Bernard Venable. Five of the six employees who were terminated

had signed Union cards (Venable had not).

3 An authorization is a card or petition signed by an

employee indicating his or her desire to form a union at their

place of employment. The authorization cards can be signed

manually on paper or digitally through a link texted to an

employee’s cell phone.

The Board claims that these terminations violated the

National Labor Relations Act, specifically: Section 7, which

guarantees employees the right to form, join, or assist labor

organizations and to engage in other concerted activities for

the purpose of collective bargaining or other mutual aid or

protection, 29 U.S.C. § 157; Section 8(a)(1), which makes it an

unfair labor practice for an employer “to interfere with,

restrain, or coerce employees in the exercise of that right,” 29

U.S.C. § 158(a)(1); and Section 8(a)(3), which provides that an

employer may not discriminate “in regard to hire or tenure or

any term or condition of employment to encourage or discourage

membership in a labor organization,” 29 U.S.C. § 158(a)(3).

Based on these alleged violations of the Act, the Union

filed four charges (two on October 30, 2020, another on February

1, 2021, and the fourth on April 8, 2021), which were

consolidated for consideration by an Administrative Law Judge of

the NLRB. A hearing was held on May 5, 2021. The decision of

the ALJ was issued on July 8, 2021.4

4 Petitioner’s request for injunctive relief is still viable

because an ALJ’s decision has no final force or effect until

acted on by the Board. See Schaub v. West Michigan Plumbing &

Heating, Inc., 250 F.3d 962, 968 (6th Cir. 2001); Sharp v. Webco

Industries, Inc., 225 F.3d 1130, 1136 (10th Cir. 2000). In

accordance with the Board’s Rules and Regulations, Sec. 102.46,

Respondent has until August 5, 2021 to appeal the ALJ’s decision

to the Board, in which case Petitioner has the right to file an

answering brief and Respondent can then file a reply brief.

On May 26, 2021, the Board filed its instant petition. The

Board seeks an injunction pursuant to § 160(j) of the Act, which

is typically referred to as a Section 10(j) petition,5 which

authorizes the Board, “upon issuance of a complaint . . .

charging that any person has engaged in or is engaging in an

unfair labor practice,” to seek temporary injunctive relief from

the United States District Court for the District “wherein the

unfair labor practice in question is alleged to have occurred.”

Specifically, the Board seeks an order from this Court enjoining

Amerinox from the following pending final disposition of the

NLRB charges: (a) Discharging, laying off, or otherwise

discriminating against employees because of employees’ support

for the Union; (b) Informing employees that it will retaliate

5 Section 10(j) provides:

The Board shall have power, upon issuance of a complaint as

provided in subsection (b) charging that any person has

engaged in or is engaging in an unfair labor practice, to

petition any district court of the United States . . .

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. § 160(j).

against employees because of their support for the Union; (c)

Prohibiting employees from discussing a union during working

time while permitting them to discuss other subjects unrelated

to work; and (d) In any other manner, interfering with,

restraining or coercing employees in the exercise of the rights

guaranteed in Section 7 of the Act.

The Board also seeks as part of its requested injunctive

relief that this Court direct Amerinox to offer immediate

reinstatement to Miguel Gonzalez, Andrew Rodriguez,

Keon Smith, Joseph Soto, and Bernard Venable to their former

positions or, if those positions no longer exist, to

substantially equivalent positions, without prejudice to

their seniority or any other rights and privileges they

previously enjoyed.6

The Board claims that an injunction is necessary because by

the time the Board litigation process concludes, and a remedy is

imposed, it will be many months or even years later, and too

6 With regard to this requested relief, the Board relates that

only four employees – Soto, Smith, Rodriguez, and Gonzalez –

have currently affirmatively expressed a desire to work for

Amerinox, but that all five of the discriminatees are entitled

to consider offers of interim reinstatement under the

protections of a Section 10(j) decree. The Board further

relates that it is not seeking an offer of interim reinstatement

for George because there are remedial issues relating to his

acceptance of a job offer with a new employer prior to his

unlawful discharge.

late to revive the Union organizing drive, which Amerinox will

have managed to destroy with its unlawful conduct, and the

effects of which will be permanent unless temporary injunctive

relief is granted to safeguard the Board’s remedial powers.

Petitioner further claims that after the mass discharge/layoff

on October 19, 2020, the Union was only able to garner one

additional digital union authorization card on November 2, 2020,

and none thereafter through February 2021. Following the

terminations of the six employees, the Union was unable to get

employees to talk to them while at Amerinox’s facility.

Recently, as the hearing date on the underlying unfair-labor-

practice charges approached, the Board contends that a few

employees have been willing to speak to the Union but they have

been unwilling to be seen talking to the Union.

Amerinox, not surprisingly, tells a different story.

Amerinox sets forth what it contends are the legitimate business

reasons for the termination of these six employees. For Kyle

George, Amerinox relates that not only did George misprocess a

significant customer order in October 2020 causing Amerinox

almost a quarter of a million dollars to settle the matter with

its customer, George gave his two-weeks’ notice to Amerinox on

October 19, 2020 that he was leaving his employment for another

position with a different employer. As for Miguel Gonzalez,

Amerinox relates that on October 15, 2020, Gonzalez got into an

altercation with a co-worker. Seth Young, Amerinox’s president

and owner, determined that Gonzalez should be terminated for

violating Amerinox’s workplace violence policy, and that when he

made the decision to terminate Gonzalez, he was unaware of any

of Gonzalez’s alleged union activities.

Amerinox relates that the other four employees - Andrew

Rodriguez, Keon Smith, Joseph Soto, and Bernard Venable - were

laid off due to the impact of COVID-19. Amerinox states that

between March and October 2020, Amerinox lost approximately $1

million, and that October 2020 was especially “horrific”

financially. Amerinox determined that it needed to further

reduce employee headcount, and it prepared an internal memo

which identified seven employees considered for layoff, and the

reasons each was considered for layoff. Amerinox contends that

when Young decided to conduct the layoffs on October 19, 2020,

he “had zero knowledge of any text or cards or that there was

anything going on” with the Union.

In its overriding argument against the Board’s request for

an injunction, Amerinox contends that even putting aside the

circumstances of the six employees’ terminations, the Union has

not presented evidence to show that the unionizing activities

have been suppressed, which is the critical determination as to

whether a Section 10(j) injunction should be imposed. With

regard to the Union’s alleged unsuccessful efforts to engage

Amerinox’s workers, Amerinox points out that in 2018, the Union

attempted to organize Amerinox’s employees, led by the Union’s

area marketing representative, Robert Gadsby. A secret ballot

election was held near the end of 2018, and the Union lost.

Amerinox further points out that there is no evidence that the

Union did anything to attempt to organize Amerinox’s employees

between April/May 2020 through October 2020.

Amerinox points out that Gadsby testified that even though

there was a period of time when it appeared the organizational

campaign had slowed, it has since picked back up and now is

“steady.” Gadsby has met in person with current Amerinox

employees at the Collingswood Diner, and has met with Amerinox

employees several times since the October 2020 layoffs,

including as recently as a few weeks before the administrative

hearing in early May 2021. Gadsby also testified that he has

had ongoing contact with current Amerinox employees related to

the Union’s attempt to organize employees at Amerinox, including

exchanging texts with those employees from at least February

2021 through the weeks leading up to the administrative hearing

in May 2021. Moreover, Gadsby testified that the level of

interest among Amerinox employees not only has picked back up,

but has been steady at least as of February 2021.

In addition to arguing that the timing of the Board’s

petition demonstrates that injunctive relief is not warranted,

as the Board has delayed seven months in filing this action,

Amerinox argues that the lack of Union-chilling activities

undermines the Board’s request for injunctive relief.

In addition to directly opposing the Board’s position that

it is entitled to its requested relief pending the final

resolution of the Board’s charges,7 Amerinox also contends that

the Board has no power to bring the petition for injunctive

relief because the Acting General Counsel of the NLRB, who filed

the amended petition on behalf of petitioner, lacks authority to

prosecute this matter due to the improper removal of General

Counsel Peter B. Robb in January 2021. Amerinox contends that

7 This Court has a very limited role in the NLRB process. Once

the Board issues a final decision, either the Board or any other

“person aggrieved” by the Board’s order files a petition for

review before the relevant circuit court of appeals, and then,

if necessary, before the United States Supreme Court. See

Atlantic City Electric Company v. National Labor Relations

Board, --- F. 4th ---, 2021 WL 2817009, at *2 (3d Cir. 2021)

(citing 29 U.S.C. §§ 160(e), (f)). A district court’s only

involvement in the NLRB process is a Section 10(j) petition for

an injunction pending the Board’s final order. 29 U.S.C. §

160(j), supra note 4; cf. id. § 160(e) (providing that one rare

exception is “if all the courts of appeals to which application

may be made are in vacation” may the Board seek review of a

final order before the district court).

the removal of a lawfully appointed sitting General Counsel of a

quasi-judicial independent government agency was not in accord

with the Act and compromised the NLRB’s ability to operate

independently. Amerinox further argues that the appointment of

an Acting General Counsel circumvented the Appointments Clause

of the U.S. Constitution and the Federal Vacancies Reform Act.

The United States intervened because of this argument, and

both the Board and the United States have argued that Amerinox’s

position is without merit. Following the parties’ briefing,

including that of the United States as a consented-to

intervenor, this Court held oral argument on the Board’s

petition on June 25, 2021, and permitted supplemental briefing.

As stated above, during the pendency of this matter, the ALJ

issued his decision on July 8, 2021. The parties filed

supplemental letters regarding the impact of this decision,

which the Court has also considered.

DISCUSSION

A. Subject matter jurisdiction

This Court has subject matter jurisdiction over this matter

pursuant Section 10(j) of the National Labor Relations Act, as

amended, 29 U.S.C. § 160(j).

B. Analysis

As a preliminary matter, the Court must first briefly

address Amerinox’s challenges to the propriety of the Board’s

petition based on the circumstances of the removal of the former

General Counsel to the NLRB, and the prosecution of the matter

by the Acting General Counsel. As set forth by the United

States, in the NLRA Congress created two separate offices within

the NLRB subject to presidential appointment and senate

confirmation: Members of the Board, 29 U.S.C. § 153(a),8 and the

General Counsel, 29 U.S.C. § 153(d).9 Congress provided that the

8 29 U.S.C. § 153(a) provides:

The National Labor Relations Board (hereinafter called the

“Board”) created by this subchapter prior to its amendment

by the Labor Management Relations Act, 1947 [29 U.S.C. 141

et seq.], is continued as an agency of the United States,

except that the Board shall consist of five instead of

three members, appointed by the President by and with the

advice and consent of the Senate. Of the two additional

members so provided for, one shall be appointed for a term

of five years and the other for a term of two years. Their

successors, and the successors of the other members, shall

be appointed for terms of five years each, excepting that

any individual chosen to fill a vacancy shall be appointed

only for the unexpired term of the member whom he shall

succeed. The President shall designate one member to serve

as Chairman of the Board. Any member of the Board may be

removed by the President, upon notice and hearing, for

neglect of duty or malfeasance in office, but for no other

cause.

9 29 U.S.C. § 153(d) provides,

There shall be a General Counsel of the Board who shall be

appointed by the President, by and with the advice and

persons appointed to the Board “may be removed by the President,

upon notice and hearing, for neglect of duty or malfeasance in

office, but for no other cause.” 29 U.S.C. § 153(a). Congress

did not include the same provision for the General Counsel. Id.

§ 153(d).

Based on the plain language of these provisions, the

President may relieve the General Counsel of his or her duties

without the process required for Board members. This

prerogative of the President also demonstrates that the

temporary assignment of an Acting General Counsel without

compliance with the Appointments Clause10 or other laws, such as

consent of the Senate, for a term of four years. The

General Counsel of the Board shall exercise general

supervision over all attorneys employed by the Board (other

than administrative law judges and legal assistants to

Board members) and over the officers and employees in the

regional offices. He shall have final authority, on behalf

of the Board, in respect of the investigation of charges

and issuance of complaints under section 160 of this title,

and in respect of the prosecution of such complaints before

the Board, and shall have such other duties as the Board

may prescribe or as may be provided by law. In case of a

vacancy in the office of the General Counsel the President

is authorized to designate the officer or employee who

shall act as General Counsel during such vacancy, but no

person or persons so designated shall so act (1) for more

than forty days when the Congress is in session unless a

nomination to fill such vacancy shall have been submitted

to the Senate, or (2) after the adjournment sine die of the

session of the Senate in which such nomination was

submitted.

10 The U.S. Constitution’s Appointments Clause, provides in

relevant part: “[The President] . . . shall nominate, and by and

Federal Vacancies Reform Act,11 does not render the Section 10(j)

petition invalid. Indeed, the Act itself provides for the

designation of an Acting General Counsel when the General

Counsel’s position becomes vacant, however that vacancy came to

be. See 29 U.S.C. § 153(d), supra note 9.

Moreover, a Section 10(j) petition for an injunction is

brought by the Board, not the General Counsel. That statute

provides:

•

“The Board is empowered . . . to prevent any person from

engaging in any unfair labor practice . . . .” 29 U.S.C.

§ 160(a).

•

“The Board shall have power, upon issuance of a complaint

as provided in subsection (b) 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.” Id. § 160(j).

with the Advice and Consent of the Senate, shall appoint

Ambassadors, other public Ministers and Consuls, Judges of the

Supreme Court, and all other Officers of the United States,

whose Appointments are not herein otherwise provided for, and

which shall be established by Law . . . .” U.S. CONST., art.

II, § 2, cl. 2.

11 The Federal Vacancies Reform Act of 1998 (Vacancies Reform

Act), Pub. L. No. 105 -277, Div. C, tit. 1, § 151, 112 Stat.

2681-611-16, codified at 5 U.S.C. §§ 3345-3349d, provides for

the temporary filling of vacant executive agency positions that

require presidential appointment with Senate confirmation.

The Board, through its Regional Director, Thomas Goonan,

and under its power to “to prevent any person from engaging in

any unfair labor practice,” brought a petition before this Court

pursuant to § 160(j).12 In compliance with § 160(j), this Court

12 The Court recognizes that the “General Counsel of the Board

shall exercise general supervision over all attorneys employed

by the Board,” and “[h]e shall have final authority, on behalf

of the Board, in respect of the investigation of charges and

issuance of complaints under section 160 of this title, and in

respect of the prosecution of such complaints before the Board,

and shall have such other duties as the Board may prescribe or

as may be provided by law.” 29 U.S.C. § 153(d). The duties of

the General Counsel, however, regarding the investigation and

institution of a charge is separate from the final decision of

the Board on that charge. See NLRB Rules and Regulation, Sec.

102.45 (“Upon the filing of the [ALJ’s] decision, the Board

shall enter an order transferring the case to the Board and

shall serve copies of the order, setting forth the date of such

transfer, on all the parties.”); id. Sec. 102.46 (“Within 28

days, or within such further period as the Board may allow, from

the date of the service of the order transferring the case to

the Board, pursuant to section 102.45, any party may . . . file

with the Board in Washington, D.C., exceptions to the

administrative law judge’s decision or to any other part of the

record or proceedings (including rulings upon all motions or

objections), together with a brief in support of said

exceptions.”); id. Sec. 102.48(a) (“In the event no timely or

proper exceptions are filed as herein provided, the findings,

conclusions, and recommendations contained in the administrative

law judge’s decision shall, pursuant to section 10(c) of the

Act, automatically become the decision and order of the Board

and become its findings, conclusions, and order, and all

objections and exceptions thereto shall be deemed waived for all

purposes.”); id. Sec. 102.48(b) (“Upon the filing of timely and

proper exceptions, and any cross-exceptions or answering briefs,

as provided in section 102.46, the Board may decide the matter

forthwith upon the record, or after oral argument, or may reopen

the record and receive further evidence before a Member of the

Board or other Board agent or agency, or may make other

disposition of the case.”).

must determine whether to “grant to the Board such temporary

relief or restraining order as it deems just and proper.” 29

U.S.C. § 160(j) (emphasis added). In sum, because the authority

to bring this petition is vested by statute with the Board -

individuals appointed and confirmed as the Constitution requires

– this Court has jurisdiction to hear and adjudicate this

Petition.

To that end, this Court is tasked with deciding two narrow

issues in considering a § 160(j)/Section 10(j) petition for an

injunction. The Court “need not, indeed should not, make a

finding of employer motivation.” Eisenberg for and on Behalf of

N.L.R.B. v. Wellington Hall Nursing Home, Inc., 651 F.2d 902,

906 (3d Cir. 1981). Instead, this Court’s determination of

whether to issue temporary injunctive relief under Section 10(j)

involves a two-fold inquiry: (1) whether there is reasonable

cause to believe that an unfair labor practice has occurred; and

(2) whether an injunction would be just and proper. Hirsch v.

Dorsey Trailers, Inc., 147 F.3d 243, 247 (3d Cir. 1998). “Under

this inquiry, the court determines whether an injunction is

necessary to preserve the Board’s remedial powers, which

incorporates a weighing of relative harms to the bargaining

process, employees’ rights, and the likelihood of restoring the

status quo absent injunctive relief, along with the public

interests implicated by the labor disputes.” Chester ex rel.

N.L.R.B. v. Grane Healthcare Co., 666 F.3d 87, 98–99 (3d Cir.

2011).

(1) Whether there is reasonable cause to believe that an

unfair labor practice has occurred

This Court finds that the Board has established the first

prong of the two-part test. The “reasonable cause” inquiry

requires a court to examine whether the Board’s legal theory is

“substantial and non-frivolous,” Chester ex rel. N.L.R.B. v.

Grane Healthcare Co., 666 F.3d 87, 101 (3d Cir. 2011), which is

a “low threshold of proof,” Kobell v. Suburban Lines, Inc., 731

F.2d 1076, 1084 (3d Cir. 1984). After a hearing and an

opportunity for Respondent to be heard, the ALJ found:

2. Respondent violated Section 8(a)(1) of the Act by

telling employees they were not permitted to talk about the

Union during working time, although Respondent permitted

employees to talk about other nonwork topics during working

time.

3. Respondent violated Section 8(a)(1) of the Act by

threatening employees with discharge if they supported the

Union or engaged in Union activity.

4. Respondent violated Section 8(a)(1) of the Act by

(i) telling an employee that the employee was being

discharged because of the employee’s support for the Union;

and (ii) by creating the impression among its employees

that their Union activities were under surveillance by

Respondent.

5. Respondent violated Section 8(a)(3) and (1) of the

Act when it discharged its employee Miguel “Taz” Gonzalez

because he formed, joined, or assisted the Union and

engaged in concerted activities, and to discourage

employees from engaging in these activities.

6. Respondent violated Section 8(a)(3) and (1) of the

Act when it immediately separated its employee Kyle George,

rather than allowing him to work his final two weeks,

because he formed, joined, or assisted the Union and

engaged in concerted activities, and to discourage

employees from engaging in these activities.

7. Respondent violated Section 8(a)(3) and (1) of the

Act when it laid off its employees Andrew Rodriguez, Joseph

Soto, Keon Smith, and Bernard Venable because Respondent’s

employees formed, joined, or assisted the Union and engaged

in concerted activities, and to discourage employees from

engaging in these activities.

8. The unfair labor practices described above affect

commerce within the meaning of Section 2(6) and (7) of the

Act.

(Docket No. 46-1 at 21-22.)13

The ALJ’s recent decision finding extensive unfair labor

practices,14 which is based on the same record before this Court

13 As discussed more below, the ALJ ordered, among other relief,

that Amerinox is required to offer full reinstatement to Miguel

Gonzalez, Andrew Rodriguez, Joseph Soto, Keon Smith, and Bernard

Venable, and that Amerinox make whole Kyle George, Miguel

Gonzalez, Andrew Rodriguez, Joseph Soto, Keon Smith, and Bernard

Venable for any loss of earnings and other benefits. (Docket

No. 46-1 at 25.)

14 This Court may consider the substance of the ALJ’s decision,

which was issued after briefing and oral argument on the Board’s

petition, but prior to the issuance of this Opinion. See, e.g.,

Moore-Duncan ex rel. N.L.R.B. v. Aldworth Co., Inc., 124 F.

Supp. 2d 268, 274 (D.N.J. 2000) (“This Court has reviewed the

extensive record in this case, including the transcripts of

proceedings and other evidence before Administrative Law Judge

William G. Kocol, and Judge Kocol’s Opinion of April 20, 2000,

detailing his findings that the respondents had committed

substantial unfair labor practices surrounding union organizing

and which this Court has reviewed,15 confirms that the Board has

readily met the “low threshold” “reasonable cause” element.

(2) Whether an injunction would be just and proper

The Board has also met the second prong to warrant

injunctive relief. Whether the imposition of an injunction

pending the final resolution of the Union’s charges would be

“just and proper” focuses on the Board’s ability to “facilitate

peaceful management-labor negotiation.” Hirsch, 147 F.3d at 247

(citing Vibra Screw, 904 F.2d at 879 (“[T]he critical

determination is whether, absent an injunction, the Board's

ability to facilitate peaceful management-labor negotiation will

be impaired.”)).

In evaluating the net benefits of injunctive relief, the

courts weigh the relative harms it may prevent against the harms

it may produce. Id. That includes evaluating how “the chilling

effect of management retaliation may outlast the curative

activities and a certification election conducted September 19,

1998. The essential issue under section 10(j) is whether this

Court should grant a temporary injunction compelling the

respondents to take steps to ameliorate their alleged unfair

labor practices pending final determination by the NLRB upon

review of ALJ Kocol’s decision.”).

15 See Docket No. 23, ORDER granting Petitioner's Motion to Try

Petition for Temporary Injunction on the Basis of the Record

Developed before the Administrative Law Judge. Amerinox did not

oppose this motion.

effects of any remedial action the Board might take . . . .”

Id. (citation omitted). It also includes weighing not only the

harms to the Board, but also the harms injunctive relief poses

to the employer. Id. (citation omitted).

In this case, the Board argues that an injunction is just

and proper because: “The leaders of the campaign have been

illegally removed from the workplace. The employees are afraid

and the campaign has effectively ground to a halt. The Union

quickly secured eight cards prior to the mass discharge

on October 19. After the discharges, the Union has had

difficulty communicating with the employees and . . . card

signing slowed to a trickle, despite the Union going to the

facility about twice a week. The Union received only

four cards between October 20 and November 2, as well as one

card that was undated, and two additional cards in March 2021,

despite continuing fear.” (Docket No. 3 at 53.)

The Court recognizes Amerinox’s contrasting position that

the “mass discharge” of union activists did not impact the

Union’s efforts because of the following: the Union was able to

obtain four cards in the two weeks after the terminations; even

though there was a period of time when it appeared that the

organizational campaign had slowed, it has since picked back up

and now is “steady”; Gadsby has met in person with current

Amerinox employees at the Collingswood Diner; he has met with

Amerinox employees several times since the October 2020 layoffs,

including as recently as a few weeks before the administrative

hearing in early May 2021; he has had ongoing contact with

current Amerinox employees related to the Union’s attempt to

organize employees at Amerinox; he has exchanged texts with

those employees from at least February 2021 through the weeks

leading up to the administrative hearing in May 2021; the Board

does not provide evidence from current Amerinox employees who

have expressed that fear of retaliation by Amerinox is the

reason they have not signed the Union authorization cards,

rather than a lack of interest by employees in joining the

Union; and the Board waited seven months to file its petition.16

The Court finds, however, that despite the above-outlined

Union communications with Amerinox employees and the recent

signing of additional authorization cards, the Board has

demonstrated on the record as a whole that Amerinox’s

acrimonious history with the Union and the termination of

employees who have expressed support for the union, is likely to

16 The Court notes that a delay in initiating a Section 10(j)

petition does not on its own preclude injunctive relief. (See

Docket No. 30 at 19, citing cases.)

have, and continues to have, a substantial chilling effect on

its employees’ unionizing activities.

The ALJ noted that an employer’s rules and policies that

prohibit employees from disclosing or discussing their wage rate

or salary violate the Act, and the ALJ found that Amerinox

violated Section 8(a)(1) between June 1, 2020 and March 30,

2021, by maintaining rules in Sections L and V of its Employee

Manual and its Progressive Disciplinary Policy that prohibit

employees from disclosing information about wages, benefits, and

other terms and conditions of employment. (Docket No. 46-1 at

21.) Although after March 30, 2021, Amerinox revised and

reissued both documents to include acceptable language, this

Court finds that the chilling effect of those provisions is

likely to have persisted since then and continues today. This

finding is supported by the ALJ’s July 8, 2021 order, which

directed that Amerinox was to immediately provide employees with

inserts or revised versions for the current Employee Manual and

current Progressive Disciplinary Policy that advises that the

unlawful provisions have been rescinded, or provides a lawfully

worded provision on adhesive backing that will cover the

unlawful provisions. (Id. at 23.)

The ALJ’s decision also supports the finding that

Amerinox’s actions have likely chilled, and continue to chill,

its employees’ union activities. The ALJ found that in addition

to providing employees with revised versions of the Employee

Manual and Progressive Disciplinary Policy, additional remedies

were necessary to fully dissipate the coercive effect of

unlawful discharges and layoffs and other unfair labor

practices, including a notice reading and the entry of a broad

cease and desist order.17 (Id.) The ALJ found that a notice

reading was appropriate where, as here, the employer’s

violations are serious enough that a reading is warranted to

reduce the chilling effect of the violations on employees’

willingness to exercise their Section 7 rights. (Id. at 23-24.)

The ALJ found that Amerinox “committed serious violations,

including threats from the company president that he would

destroy those who support the Union and later a mass

separation/layoff of over 60 percent of the Union supporters

immediately upon learning of the renewed organizing efforts,”

and that Amerinox “has a history of serious violations during

the prior organizing effort.” (Id. at 24.) The ALJ recommended

that Amerinox should be required to hold a mandatory employee

meeting on working time to ensure the widest possible employee

17 The ALJ noted that the additional remedies also included

notice mailing, providing the Union with employees’ contact

information and access to Amerinox’s bulletin board, and access

to Amerinox’s facility. (Docket No. 46-1 at 23.) The ALJ did

not order these additional remedies.

attendance, at which Amerinox representatives would read aloud

the notice to employees.

The ALJ further found that the serious unfair labor

practices in this case, in combination with the numerous

violations addressed in the prior formal settlement,

demonstrated a general disregard for Amerinox’s employees’

fundamental Section 7 rights, and consequently a broad cease-

and-desist remedy was warranted and would best effectuate the

remedial purposes of the Act. (Id. at 24.)

Accordingly, the ALJ ordered the following relief that

Amerinox:

1. Cease and desist from:

(a) Discharging, laying off, or otherwise discriminating

against employees because of their support for a union or

because other employees support a union.

(b) Creating the impression that it is engaged in

surveillance of its employees’ union or other

organizational activities.

(c) Threatening employees with discharge or other

retaliation if you choose to be represented by or support a

union.

(d) Prohibiting employees from discussing a union during

working time while permitting them to discuss other

subjects unrelated to work.

(e) Telling employees they are being separated because of

their support for a union.

(f) Maintaining work rules that prohibit employees from

discussing their wages, benefits, or other terms or

conditions of employment.

(g) In any other manner interfering with, restraining, or

coercing employees in the exercise of the rights guaranteed

them by Section 7 of the Act.

(Id. at 25.)

This Court recognizes that the ALJ did not explicitly

consider the two-prong test for a Section 10(j) petition for

injunctive relief that this Court must assess. But the ALJ

considered the same administrative record as presented to this

Court,18 and this Court cannot overlook the significance of the

ALJ’s findings that Amerinox’s current union-chilling conduct

requires the immediate imposition of a notice reading and a

cease-and-desist order.

Similarly, in determining whether Section 10(j) injunction

is warranted, the Court must consider the individual relief the

ALJ afforded to the discharged employees. The ALJ ordered,

among other relief, that Amerinox is required to offer full

reinstatement to Miguel Gonzalez, Andrew Rodriguez, Joseph Soto,

Keon Smith, and Bernard Venable. (Docket No. 46-1 at 25.) Part

of the Board’s request for injunctive relief here is the offer

of interim reinstatement to these same employees.

The Court recognizes that the focus of a Section 10(j)

petition for injunctive relief is on the Board’s efforts to

18 See, infra, note 13.

facilitate peaceful management-labor negotiation, and not to

provide redress to a discharged employee individually, which is

a major focus of the ALJ’s decision. See Eisenberg for and on

Behalf of N. L. R. B. v. Wellington Hall Nursing Home, Inc., 651

F.2d 902, 906–07 (3d Cir. 1981) (explaining that “[w]hen the

Board files an application for such relief it is not acting on

behalf of individual employees, but in the public interest”).

Where, however, “union supporters are excluded from the

bargaining process pending resolution of unfair labor practice

charges, the position of the designated bargaining

representative will in all likelihood be substantially

undermined, [and] all members of the bargaining unit may be

affected by such an erosion of union support.” Id.

Here, the offer of interim reinstatement of the discharged

employees who were all terminated on the same day

contemporaneous with their union activities will serve to

ameliorate the “harms to the bargaining process [and] employees’

rights,” “restore the status quo” and serve “the public

interests implicated by the labor disputes.” Grane Healthcare

Co., 666 F.3d at 98–99. Additionally, Amerinox has not

expressly articulated what harm it will suffer if the Court

grants the Board’s requested relief. See Hirsch, 147 F.3d at

247 (explaining that in evaluating the net benefits of

injunctive relief, a court must weigh not only the harms to the

Board, but also the harms injunctive relief poses to the

employer).

Consequently, the Court finds that the “issuance of an

injunction is ‘just and proper,’ i.e., that it is in the public

interest to grant the injunction, so as to effectuate the

policies of the National Labor Relations Act or to fulfill the

remedial function of the Board.” Lenape Products, 781 F.2d at

1003. The Court will issue an injunction which includes

enjoining Amerinox from engaging in any actions relative to its

employees’ union activities, ordering that Amerinox offer

interim reinstatement to the five affected employees, posting

notice, and holding a reading of the notice.19

19 In its petition, the Board requests that the Court order

Amerinox to: “Supply the Union, upon its request, with the full

names, work locations, shifts, job classifications and home

addresses for the following employees: All full-time and regular

part-time shipping/receiving employees, production and

maintenance employees employed by Respondent at its 2201 Mount

Ephraim Avenue, Camden, New Jersey facility.” (Docket No. 14 at

9.) The ALJ denied this relief, finding, “The Union, however,

does not lack the ability to access Respondent’s employees.

Gadsby was able to communicate with several employees with the

information he had, and the discriminatees, once reinstated,

will be a to communicate with coworkers. I, therefore, see no

need for these additional remedies under the circumstances.”

(Docket No. 46-1 at 24 n.36.) Amerinox also opposed this relief

in its opposition to the Board’s petition for the same reasons.

Because the Board has not expressly contested these reasons of

the ALJ and Amerinox, the Court will decline to grant that

relief.

CONCLUSION

Even though this Court finds that a Section 10(j)

injunction is warranted at this time, the Court trusts that the

administrative process will still continue expeditiously. As

the Third Circuit has observed, a Section 10(j) injunction may

only last six months, with limited extensions. The Third

Circuit has further observed:

Overworked courts understand and are sensitive to the

problems of overworked administrative agencies. But courts

should and do give priority to matters of great urgency,

particularly those in which need for relief is said to be

so great as to justify the extraordinary remedy of

temporary injunction. By the same token we think the

administrative sense of urgency that leads to a suit for

temporary injunctive relief under Section 10(j) should not

abate once an injunction issues. Rather, the

administrative law judge and, after him, the Board should

hear and dispose of the controversy expeditiously. Indeed,

we think a pledge of expeditious administrative action is

necessarily implicit in a petition for a Section 10(j)

injunction. Otherwise, a temporary injunction, entered

without reaching the ultimate merits of a dispute may

become, in effect, a final disposition of the controversy.

Hartz Mountain, 519 F.2d at 144.

Thus, for the reasons expressed above, the Court will grant

the Board’s petition for an injunction under Section 10(j) of

the National Labor Relations Act, with an appropriate Order to

be entered.

Date: July 14, 2021 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.