Operations In Fiscal Year 1988 - National Labor Relations Board

Injunction Litigation 151employees. The record established that "interest in the union'sorganizational program at Tomco ended with the • firing of theeleven union committee members. If [they] must wait until theBoard's fmal order . . . they most likely will have found workelsewhere. An order of reinstatement would then be an 'emptyformality'. . . [for] Tomco will have succeeded in removing theunion organizers and the union from its facility." 8 The circuitcourt also rejected the employer's claim that a 4-month delay infiling the injunction petition warranted denial of the reliefsought. Agreeing with the Sixth and Eighth Circuits that"[d]elay by itself is not a determinative factor," 9 the, court heldthat "[a]lthough interim reinstatement may not precisely restorethe status quo . . . it would revive the union's organizationalcampaign at Tomco."" Finally, the circuit court rejected theemployer's claim that a reinstatement order would be inequitablebecause it would require the discharge of 11 "innocent" replacementemployees. "[T]he predominant focus under section 10(j) isthe harm to the bargaining process, not to individual employees,"the court observed, and in any event "the rights of the employeeswho were discriminatorily discharged are superior to therights of those whom the employer hired to take their places."Accordingly, the court remanded the case to the district courtwith instructions to issue an order requiring interim reinstatementof the discharged employees.In Kobell v. Menard Fiberglass Products," a union was attemptingto organize the employees of two commonly owned and operatedcompanies that were located at a single plant. The districtcourt found these companies to be a single employer under theAct. The court further found reasonable cause to believe that thecompanies had threatened their employees with plant closure anddischarge if they joined the union and had discriminatorily dischargedor laid off more than 10 employees at both of the companiesto discourage their union activities or support. At the timeof the hearing, one of the companies had completely ceased itsoperations. The court found that the Regional Director's requestfor an order directing a sequestration of assets in the amount of$48,000 was "just and proper" to protect the future backpayclaims of the discharged and laid-off employees because testimonywas adduced that the companies were in the process of sellingoff assets without providing for satisfaction of the Board's backpayclaim. The court concluded that, if it failed to act, any ultimatebackpay award issued by the Board could be renderedmeaningless." The court also concluded that a cease-and-desist° Id. at 749.9 Gottfried v. Frankel, 818 F.2d 485, 495 (6th Cir. 1987); Solien v. Merchants Home Delivery Service,557 F.2d 622, 627 (8th Qr. 1977).10 853 F.2d at 750." Ibid.12 678 F.Supp. 1155 (W.D.Pa).13 678 F.Supp. at 1167.