Opinion
99 Civ. 11584 (RCC)
May 31, 2000
Memorandum Opinion
Before the Court is a petition for injunctive relief brought by Peter B. Hoffman, Regional Director of Region 34 of the National Labor Relations Board (the "Board" or "petitioner"), pursuant to section 10(j) of the National Labor Relations Act (the "Act"), as amended, 29 U.S.C. § 1600). The Board alleges that the respondent, Inn Credible Caterers, LTD., ("Inn Credible" or respondent"), engaged in unfair labor practices in violation of sections 8(a)(1) and 8(a)(5) of the Act. The matters involved herein have also been brought before the Board in an administrative proceeding. Presently, the Board is reviewing Administrative Law Judge Howard Edelman's decision regarding the same allegations in this case, which are contained in the Complaint and Notice of Hearing in Case No. 34-CA-8845 issued by the General Counsel of the Board pursuant to section 10(b) of the Act. Therefore, the Board requests that the Court issue an injunction pending the Board's final resolution of these matters.
BACKGROUND
This action is related to the events surrounding a change of employer at Bear Mountain Inn (the "Inn") in March of 1999. The Inn is owned by Palisades Interstate Park Commission ("the Commission"), but has been managed and operated by a private entity for over twenty years. Inn Credible took over operations from Aramark, Inc. d/b/a Bear Mountain Inn on March 12, 1999.
Apparently, Inn Credible assumed operations at the Inn as a result of an emergency situation. See Counsel for General Counsel's Brief to the Administrative Law Judge ("Gen. Counsel Brf.") at 3-4. Before Inn Credible began negotiations with the Commission to replace Aramark, a group named "PEC Group" was the prime candidate for taking over operations at the Inn. However, when Cliff Fried, a lead Union Organizer, sought recognition from the PEC Group, the PEC Group withdrew from consideration. See id. Because the Commission had scheduled numerous events at the Inn around the time that Aramark's contract expired, the Commission turned to Inn Credible, which was owned and operated by Frank DeBari, who had previously worked and operated the Inn under different ownership, and who currently operated a number of non-union catering facilities in the same area. Inn Credible accepted the offer, and commenced operations in early March, but without a contract or a permanent permit. See id. at 8-9.
Since it began operating at the Inn, Inn Credible has refused to bargain with Hotel Employees and Restaurant Employees Union, Local 100, New York, N.Y. and Vicinity (the "Union"), which had been established as the bargaining representative for the employees of Bear Mountain for the past forty years. On May 10, 1999 the Union filed a charge with the Board alleging unfair labor practices. On August 31, 1999 the charge was amended, and the General Counsel of the Board issued a Complaint and Notice of Hearing against Inn Credible. See Case No. 34-CA-8845 (the "Complaint").
See Oral Argument before Hon. Richard Conway Casey, May 1, 2000 (hereinafter referred to as "Tr."). The Board was certified as the exclusive collective bargaining representative for the employees of Aramark on December 12, 1977. Petition for Injunctive Under Section 10(j) of the Act ("Petition") ¶ H(i).
On December 14, 1999 Judge Edelman tried the case, and rendered a decision on April 17, 2000, finding reasonable cause to believe that Inn Credible was a successor to Aramark. Judge Edelman also found that because Inn Credible failed to recognize and bargain with the Union, it violated sections 8(a)(1) and 8(a)(5) of the Act. Therefore, Inn Credible was ordered to cease and desist from violating the above sections, including refusing to recognize or bargain with the Union. Inn Credible was further ordered to post at the Inn a notice reflecting Judge Edelman's decision.
When a new employer replaces a former employer, and there is substantial continuity between their operations, the new employer must bargain with a union if a majority of the employees under the new employer are former union members. See Fall River Dyeing and Finishing Corp. v. NLRB, 482 U.S. 27 (1987). One of Inn Credible's principle and unsuccessful arguments before Judge Edelman was that it should not be considered a successor because only a minority of its employees were former union members at the time it took over operations at the Inn.
DISCUSSION
In order to secure an injunction in the context of section 10(j) of the Act, a party must satisfy a two-prong test. First, the party must demonstrate that there is reasonable cause to believe that a violation of the Act has occurred. Second, the party must demonstrate that the relief sought is just and proper.See Kaynard v. Mego Corp., 633 F.2d 1026, 1033 (2d Cir. 1980). During oral argument before this Court, the Board argued that the first prong was satisfied because Judge Edelman had already ruled that reasonable cause existed to believe a violation of the Act occurred. Inn Credible argued that the Second Circuit has held that a district court may still deviate from the administrative law judge's decision, if upon review the district court finds that decision to be in error. See Tr. at 14-16. However, as will be discussed below, because the Court holds that the relief requested fails to satisfy the second prong of the just and proper analysis, it is unnecessary for the Court to decide how much weight Judge Edelman's decision deserves.
At the outset, the Court notes that there are no bright line rules with respect to whether the granting of an injunction would be just and proper. See Silverman v. Local 78, 958 F. Supp. 129, 134 (S.D.N.Y. 1996). Injunctive relief under section 10(j) is proper where serious and pervasive unfair labor practices threaten to render the Board's process totally ineffective by precluding a meaningful final remedy; where interim relief is the only effective means to preserve or restore the status quo as it existed before the violations; and where the passage of time might otherwise allow the respondent to accomplish its unlawful objective before being placed under legal restraint. Dunbar v. Carrier Corp., 66 F. Supp.2d 346, 353 (N.D.N.Y. 1999) (citingKaynard, 633 F.2d at 1034; Seeler v. The Trading Port, 517 F.2d 33, 38 (2d Cir. 1975)). Furthermore, when reviewing an application for injunctive relief, the court must consider general equitable criteria such as whether irreparable injury may result in the absence of an injunction, Kaynard at 1033, and whether a balancing of the hardships supports an injunction.Ahearn v. House of the Good Samaritan, 884 F. Supp. 654, 661 (N.D.N.Y. 1995).
Here, the Board admits that the employees of Inn Credible have suffered no material adverse consequences related to Inn Credible's refusal to recognize the Union, other than the loss of union leaders and a grievance procedure. See Tr. at 3-6. For instance, the employees are receiving equal if not greater pay, and their benefits are presumably comparable to the previous union-negotiated benefits, as counsel for the Board could not inform the Court whether the current benefits are better or worse than the former. See id. at 5. Generally, in order to justify the extraordinary remedy of an injunction, the petitioner must demonstrate some type of egregious violation of the Act, i.e., something that would demonstrate irreparable harm to the employees. See, e.g., Seeler, 517 F.2d 33; Kaynard v. Palby Lingerie. Inc., 625 F.2d 1047 (2d Cir. 1980). As the Second Circuit has stated:
Counsel for the Board did make the point that these considerations are irrelevant because an employer may not entice prospective employees to forgo their right to unionize by providing them with greater benefits than the union could bargain for. However, in order to determine whether an injunction is just and proper in this case, it is instructive to look to Inn Credible's treatment of its employees under the totality of the circumstances, including wages and benefits, especially where petitioner has failed to provide any evidence of any adverse treatment of Inn Credible's employees.
It is black-letter law that the issuance of an injunction is an extraordinary remedy indeed. This is especially true in the labor field where Congress by the Norris-LaGuardia Act deprived the federal courts of jurisdiction to issue injunctions in labor disputes. . . . (S)ection (10(j)) in no way changed the extraordinary nature of the injunctive remedy. Kaynard at 1033 (quoting McLeod v. General Electric Co., 366 F.2d 847 (2d Cir. 1966). vacated as moot, 385 U.S. 533, 87 S.Ct. 637 (1967)).
Here, the petitioner can only cite theoretical situations where a union representative might be more preferable than having to deal with the employer itself. No where in the record is there any evidence of any unfair treatment towards the employees, and no where in the record is there any evidence of an employee who suffered for lack of union representation. In fact, it could be inferred that at least a near majority of the employees are against unionization. Finally, the Court notes that the Board provided no legal support for the notion that mere failure to recognize a union, alone, justifies injunctive relief. If petitioner could demonstrate that the employees actively sought union representation, or suffered harm for lack of union representation, an injunction might be considered just and proper. Thus, in the absence of any evidence that serious and pervasive harm has been visited upon Inn Credible's employees, an injunction cannot be deemed just and proper and petitioner's request for an injunction must be denied.
See Respondent's Brief to the Administrative Law Judge at 9.
CONCLUSION
For the reasons stated above, petitioner's request for injunctive relief is denied. However, petitioner's motion is denied without prejudice and with leave to renew should petitioner be able to provide evidence of egregious conduct committed by Inn Credible against its employees.