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Kendellen v. Evergreen America Corp.

April 12, 2006


The opinion of the court was delivered by: Bassler, Senior District Judge



Gary T. Kendellen, the Regional Director of Region 22 of the National Labor Relations Board ("Board" or "Petitioner"), petitioned this court for temporary injunctive relief pursuant to Section 10(j) of the National Labor Relations Act (the "Act").

Section 10(j) authorizes United States district courts to grant temporary injunctions pending the Board's resolution of unfair labor practice proceedings. National Labor Relations Act § 10(j), as amended, 29 U.S.C.A. § 160(j).*fn1

The Board alleges that Evergreen America Corporation ("Evergreen" or "Respondent") violated the Act by engaging in a campaign designed to undermine the efforts of Local 1964, International Longshoremen's Association, AFL-CIO ("Local 1964" or the "Union"). The alleged unfair labor practices include interrogating its employees regarding their union sympathies and the sympathies of other employees; threatening employees with plant closure or relocation, discharge, loss of benefits and other reprisals if they continued to support the Union; and undermining employee support for the Union by making unusually high, across the board, wage increases and promotions, providing Christmas gift certificates, sponsoring lunches and picnics, and liberalizing the attendance and dress policies. The Board seeks a cease and desist order to enjoin Evergreen from engaging in such unfair labor practices and a bargaining order requiring Evergreen to negotiate with the Union.

The Court has jurisdiction pursuant to 29 U.S.C.A. § 160(j) and venue is proper pursuant to 28 U.S.C.A. § 1391.


Evergreen's primary business consists of acting as general agent in North America for ocean steamship companies. Its primary activities include generating sales, providing customer service, documentation, arranging for shipside operation and coordination of the inland distribution of cargo in North America. In March 2002, David Chiang and Wayne Ting, two clerical employees of Evergreen, met with Local 1964, to discuss Local 1964's representation of Evergreen employees. Chiang and Ting explained that "management treated [Evergreen employees] unfairly, and . . . employees were concerned about their job security." July 25, 2005 Opinion of Administrative Law Judge ("ALJ") 11:35-38. In mid-April 2002, Local 1964 began seeking unionization from Evergreen employees After holding a meeting on April 15, 2002, Local 1964 distributed authorization cards which would allow the Union to represent the employees. The employees also formed an Organizing Committee to circulate additional cards among the employees that were not able to attend the meeting. As a result of this process, Local 1964 was able to obtain 66 authorization cards from the employees.*fn2 Believing that it held a majority of the employees' votes, Local 1964 filed a petition with the NLRB on June 4, 2002 seeking an election. When the election was held on July 17, 2002, however, the employees voted 61 to 52 against the Union. Local 1964 filed a charge against Evergreen on July 19, 2002, claiming that Evergreen had engaged in unfair labor practices to prevent the employees from voting in favor of the Union.

The Board issued its first Complaint against Evergreen on December 31, 2002. Labor 1964 filed additional charges and the Board amended the original complaint several times. The Fourth Amended Complaint alleges that Evergreen violated Section 8(a)(1) and (3)*fn3 of the Act by unlawfully interrogating employees, threatening them with plant closure, granting excessive wage increases, promoting an excessive number of employees, liberalizing its attendance policy and its dress code and engaging in various other conduct in violation of the Act.

On February 13, 2004, the Board filed its petition for Section 10(j) injunctive relief pending a final decision by the Board. Subsequently, this Court decided incorrectly to await the conclusion of the administrative hearing before taking further action.*fn4 collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).


The ALJ ruled that as of June 15, 2002 the Union had attained majority status.*fn6 The ALJ spent thirteen pages relating the testimony of the Organizing Committee and other employees concerning how authorization cards had been distributed and collected from employees in clerical positions (considered within the "bargaining unit") at Evergreen.*fn7 The ALJ concluded that the testimony of those employees was credible and ruled that the Board had "adduced sufficient evidence that 62 employees at Respondent signed cards authorizing the Union to represent them." ALJ 25:50-51.

The ALJ noted that when the Union began circulating campaign literature, the literature was consistent with the fears of the employees, which prompted them to seek Union representation. ALJ 27:26-28. Leaflets distributed by the Union stated that "union representation would protect employees from job loss or from Respondent moving, closing or relocating its facilities." Id. Another flyer emphasized that Evergreen had promised employees in Tacoma and San Francisco that Evergreen would not move its offices to Salt Lake City and that the employees' jobs were safe. The flyer noted that Evergreen, however, did move the Tacoma and San Francisco offices to Salt Lake City, but that the Los Angeles employees, who had voted for a union, retained their jobs. ALJ 28:16-22.

Evergreen responded by issuing its own flyer written with a "Guarantee" attached, signed by President Thomas Chen. The guarantee stated that Evergreen had not threatened to move or retaliate against the employees and issued a firm commitment to engineers, confidential and managerial employees, sales employees and sales coordinators, computer programmers, professional ...

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