July 1, 2014
By Neal Tepel
Kensington, Md. – Federal District Court Judge Samuel H. Mays ruled on June 23rd in favor of the National Labor Relations Board on two issues as the Board advocates for 226 Memphis families locked out by Kellogg since October 2013.
District Court Judge Samuel H. Mays denied the Kellogg's petition to dismiss the request by the National Labor Relations Board that is before the Court. The NLRB is asking the Court to grant a federal court injunction requiring Kellogg to end the lockout due to its imposition being predicated on illegal activity in its Memphis bargaining with Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTGM) Local 252G. Kellogg asked that the petition for this injunctive relief be dismissed because it believed the General Counsel of the National Labor Relations Board was without authority to petition the court in the Memphis Region.
In his decision to reject the company request for dismissal, Federal District Court Judge Samuel H. Mays notes, in part, "Section 10(j) of the National Labor Relations Act (NLRA) grants the Board power to petition a district court for 'temporary relief or restraining order' against an employer the Board has charged with engaging in an unfair labor practice."….. "The NLRA vests in the General Counsel of the Board 'final authority,' on behalf of the Board, with respect to the investigation of charges and issuance of complaints under section 160 of this title[.]"…. "In exercising that authority, the General Counsel is not limited to delegating the filing of a petition to a regional director over the region of the dispute."
In another matter before the Court, the NLRB petitioned the Court to use the record created in the May 5-9th trial before an Administrative Law Judge in Memphis, at which testimony was taken concerning union-filed unfair labor practices against Kellogg, as a basis for his considerations on the injunction request. Kellogg, asked the Court for the chance to re-present its evidence before the Court in lieu of using information and testimony already collected in the previous hearing. Judge Mays granted the NLRB's motion asking that the prior record be used.
In his decision affirming the NLRB's petition to use such information, Judge Mays said, "The Court has reviewed the administrative record and finds it sufficient to decide the merits of the petition. The administrative record consists of thousands of pages of hearing transcripts and sworn affidavits. Both parties participated in building that record. Creating a duplicate record in this Court would require a considerable expenditure of resources by the parties and the Court that would not be helpful in determining whether there is reasonable cause to believe that unfair labor practices have occurred in this case."
BCTGM International President David Durkee said, "We are pleased with Judge Mays' decisions and we remain confident that our members and their families will soon have further legal validation that upholds our contention from day-one concerning the illegality of Kellogg's actions in Memphis. The unnecessary suffering imposed by Kellogg on these 226 families has occurred for one reason and one reason alone; Kellogg's insatiable thirst for profit even if it means destroying the very lives of its employees and their families to achieve it."
***BCTGM Local 252G members have been locked out since October 22, 2013. The lockout is in its 246th day.
