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McKinney v. Horseshoe Bossier City Hotel & Casino

United States District Court, W.D. Louisiana, Shreveport Division

April 10, 2019

M. KATHLEEN McKINNEY, Regional Director of Region 15 of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD,




         Before the Court is a Petition/Motion for Temporary Injunction filed by Plaintiff M. Kathleen McKinney on behalf of the National Labor Relations Board (collectively “the NLRB”) pursuant to Section 10(j) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 160(j), against Defendant Horseshoe Bossier City Hotel & Casino (“Horseshoe”). See Record Document 1. Horseshoe opposes the Petition. See Record Document 38. For the reasons set forth below, the NLRB's motion is hereby DENIED.

         I. BACKGROUND

         This action concerns a petition for temporary injunctive relief by the NLRB in which it alleges that Horseshoe committed various acts, or unfair labor practices (“ULPs”), in violation of the NLRA. See Record Document 1 at 1. While the Petition alleges several ULPs by Horseshoe, which are described herein, the primary act on which the Petition is focused is Horseshoe's termination of one of its employees, Judy Murduca (“Murduca”). See Record Document 36 at 15; Record Document 38 at 10.

         Horseshoe is a hotel and casino located in Bossier City, Louisiana and employs approximately 1, 400 employees. See Record Document 38 at 9. The primary job classifications concerned in this action, other than management positions, are table games dealers and Dual Rate Dealer Supervisors (“DRDSs”), [1] the latter of which was the position held by Murduca. See id. at 9-10. The Petition alleges that in early February and March of 2018, Horseshoe engaged in a variety of actions designed to halt and discourage the unionization efforts of some of its employees. See Record Document 1 at 4-5; Record Document 36 at 8. Specifically, the Petition alleges, inter alia, that Horseshoe changed terms and conditions of employment to affect employee support for union efforts, made unlawful statements to employees at meetings held to address employees' union activity, discriminatorily applied its non-solicitation and name badge policies against employees involved in union activity, and discriminatorily terminated Murduca in retaliation for her union activities and to discourage other employees from supporting such activities. See Record Document 1 at 5.

         In response, Horseshoe wholly refutes the NLRB's claims that any of its alleged actions were motivated by anti-union animus, and that even as alleged in the Petition, all of the alleged acts were one-time occurrences and are not presently ongoing in order to be enjoined. See Record Document 38 at 13, 19. Regarding the alleged ULPs, Horseshoe points to various portions of the record evidence for its position that no employees were negatively affected by the alleged changes, if any, to their conditions of employment, did not make unlawful or coercive statements as the only ones it admits making were statements explaining to employees their potential rights and obligations under a union contract, and, further, consistently enforced its policies without regard to employees' union involvement. See id. at 11-13, 13-14.[2]

         With respect to its discharge of Murduca, Horseshoe asserts that Murduca's termination had nothing to do with her union involvement but rather was based on numerous workplace violations she had committed prior to her involvement with the union, as well as her low performance rating. See id. at 15-18. Additionally, Horseshoe contests the NLRB's assertion that Murduca was the alleged leader of the union's organizing campaign, see id. at 18-19, and, further, offers evidence to dispute the NLRB's related claim that Murduca's termination has discouraged other employees from supporting the union and has effectively “nip[ped] [the] organizing campaign in the bud, ” id. at 30.

         Beginning on December 4, 2018, a six-day hearing was held before a NLRB Administrative Law Judge in which evidence was presented as to the underlying merits of the ULP proceeding, some of which is cited to by the parties for purposes of the instant Section 10(j) Petition. See id. at 7; Record Document 36 at 7. Regarding the NLRB's requested relief, the Petition seeks, inter alia, immediate reinstatement of Murduca, a cease-and-desist order to prevent (as alleged) further violations by Horseshoe, and that such order be read to its employees and posted during the pendency of the administrative proceedings so as to reassure employees of their rights. See Record Document 36 at 28-29; Record Document 1-5 at 2-3.


         A. Standards for Injunctive Relief Under NLRA Section 10(j)

         Courts within the Fifth Circuit, along with several other circuits, apply a two-part test to requests for injunctive relief under Section 10(j). See, e.g., McKinney v. Creative Vision Resources, LLC, 783 F.3d 293, 296 (5th Cir. 2015). First, however, the Court notes the relevant statutory language of Section 10(j), which provides as follows:

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

29 U.S.C. § 160(j). Under the aforementioned test adopted by the Fifth Circuit, Section 10(j) relief is warranted only when (1) “the Board, through its Regional Director, has reasonable cause to believe that unfair labor practices have occurred, and (2) whether injunctive relief is equitably necessary, or, in the words of the statute, ‘just and proper.'” Creative Vision, 783 F.3d ...

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