Opinion
05 Civ. 0643 (WHP).
June 8, 2005
Lauren Esposito, Esq., Vonda L. Marshall, Esq., National Labor Relations Board, New York, NY, Counsel for Petitioner.
Jed L. Marcus, Esq., Peter B. Ajalat, Esq., Grotta, Glassman Hoffman, P.C., Roseland, NJ, Counsel for Respondent.
MEMORANDUM AND ORDER
The Regional Director of the National Labor Relations Board (the "Board") brings this proceeding against Duane Reade, Inc. ("Duane Reade" or the "Company") pursuant to Section 10(j) of the National Labor Relations Act (the "Act"), 29 U.S.C. § 160(j). The Regional Director petitions for a temporary injunction pending the final disposition of unfair labor practice charges currently before the Board. Specifically, the Regional Director seeks an interim bargaining order requiring Duane Reade to recognize and bargain in good faith with Allied Trades Council, Division of Local 338, RWDSU/UFCW, AFL-CIO ("ATC/Local 338"). The Regional Director also seeks to restrain Duane Reade from alleged unfair labor practices. For the reasons that follow, the Regional Director's petition is granted in part and denied in part.
BACKGROUND
I. Relations Between Duane Reade and ATC
Duane Reade operates approximately 245 retail drug stores in New York City and its surrounding suburbs. (NLRB General Counsel's ("G.C.") Ex. 58: List of Duane Reade Stores, dated Mar. 9, 2004.) For over forty years, Duane Reade recognized Allied Trades Council ("ATC") as the exclusive collective-bargaining representative for many of its employees. As of 2003, ATC represented over two thousand Duane Reade employees in 142 stores. (G.C. Ex. 58; Petition, dated Jan. 19, 2005 ("Pet.") ¶ 7(i).) ATC communicated with its bargaining unit employees primarily through store visits. (Affidavit of Reynaldo Rosado, dated Nov. 10, 2004 ("Rosado Aff.") ¶ 2; Transcript of Administrative Hearing ("ALJ Tr.") at 1027-30, 1410-11, 1803.)
Duane Reade's last collective bargaining agreement (the "CBA") with ATC governed the three-year period beginning September 1, 1998. (G.C. Ex. 8.) In relevant part, the CBA allowed "authorized representatives of the Union . . . to enter [Duane Reade]'s place of business at any time for the adjustment of disputes, grievances or any other matters that may require their presence." (G.C. Ex. 8 at 2.)
The parties were unable to negotiate a new collective bargaining agreement. As of September 1, 2001, Duane Reade ceased remitting dues to ATC. (ALJ Tr. at 2253.) On December 6, 2001, Duane Reade offered ATC its "Last, Best and Final Settlement Offer" ("LBFSO"). (ALJ Tr. at 91-92; G.C. Ex. 9.) The LBFSO restricted ATC's access to Duane Reade stores to a greater extent than the CBA. Specifically, the LBFSO required ATC to conduct in-store visits only through three named representatives and only "upon reasonable notice," provided that the visits did "not . . . interfere with the normal operations of the store." (G.C. Ex. 9 at 2.) ATC refused to accept the LBFSO at that time, and Duane Reade declared an impasse. (ALJ Tr. at 91-92.) Thus, Duane Reade implemented the provisions of the LBFSO. (ALJ Tr. at 92.) In response, ATC filed administrative charges against Duane Reade to challenge its unilateral implementation of the LBFSO. The Board concluded that "the parties had not reached a valid impasse when [Duane Reade] declared impasse [sic] and implemented its final offer." Duane Reade, Inc., 342 NLRB No. 104, 2004 WL 2096501, at *2 (N.L.R.B. Sept. 15, 2004).
By early 2003, ATC had not bargained on behalf of or collected dues from Duane Reade employees for over a year. As a result, the union suffered financially and struggled to fend off efforts by another union to supplant it. (ALJ Tr. at 2252-54, 2371-74.) To maintain its viability as an effective representative, ATC's executive board decided to affiliate with another union, Local 338, RWDSU/UFCW, AFL-CIO ("Local 338"), subject to the vote of ATC's membership. (ALJ Tr. at 2252-54, 2371-74.)
On April 16, 2003, Duane Reade's Director of Human Resources, Seymour Stein, sent an email to all district managers and managers of ATC stores. (G.C. Ex. 11.) The email directed store managers that if ATC representatives entered a store to speak with their union members about the proposed affiliation:
[Y]ou are to approach them and ask for I.D. When they present you with said I.D. you are to explain to them that if they are in your location to solicit your employees, they must leave. If more than one representative visits your location you may ask for one to leave. Allied may only be in your location regarding employee grievances.
(G.C. Ex. 11; see ALJ Tr. at 2589, 2729, 3041-42.) Stein's email represented it merely "reenforce[d] [sic] existing procedures already in place" and did not announce a new policy regarding ATC access. (G.C. Ex. 11.) Following Stein's email, Duane Reade store managers did not permit ATC representatives to speak with employees on-site unless they provided prior notice, were addressing employee grievances and only spoke to off-duty employees. (ALJ Tr. at 1032-56, 1345, 1413-71, 1508-29, 1805-19, 2820-22, 3042-45, 3201-02, 3356.)
II. The Affiliation Elections
On May 8, 2003, the American Arbitration Association (the "AAA") administered an affiliation election at various locations throughout New York City. Of ATC's 2,250 eligible members, 951 voted against affiliation and 635 voted in favor. (Affidavit of James Rizzo, dated Feb. 10, 2005 ("Rizzo Aff.") ¶ 4.) ATC believes that Duane Reade tainted the election by intimidating and improperly influencing its employees. (ALJ Tr. at 1064-76; G.C. Ex. 41: Minutes of the May 12, 2003 Meeting of the ATC Executive Board.) Prior to the vote, for example, store managers demanded that their employees disclose how they intended to vote, pressured them to vote against affiliation and circulated a petition on which employees could declare that they no longer wanted ATC representation. (ALJ Tr. at 177-79, 238-59, 353-69, 857-64, 444-51, 1249-54, 1745-47; G.C. Exs. 23, 25 28.) Store managers warned employees that their employment conditions would worsen and they could even lose their jobs if they voted for affiliation. (ALJ Tr. at 178, 243, 259, 354, 445, 453, 1745.) Store managers also promised salary raises and other rewards to employees who voted against affiliation. (ALJ Tr. at 1745.) When ATC representatives visited stores unannounced to encourage affiliation votes, store managers told them that were not allowed in the store or that they had to wait for an employee break. (ALJ Tr. at 1413-32.) Many of these store managers explained that they were acting on the instructions of corporate management. (ALJ Tr. at 1414, 1422-26, 1431.) On the day of the vote, store managers distributed "Vote No" buttons, accompanied employees to the polls and shielded Duane Reade employees from ATC representatives. (ALJ Tr. at 179-81, 360-64, 452-55, 857-62, 1745, 1840, 2882-87.)
At ATC's direction, the AAA did not certify the election results. (Duane Reade ("D.R.") Ex. 53: Letter from John Morro to Jeff Zaino, dated May 14, 2003.) The AAA held a new affiliation vote that required each union member to telephone or mail a ballot by May 29, 2003. (ALJ Tr. at 1077, 2280-82, 2438-49; D.R. Ex. 52.) Following senior management's directive, store managers ejected ATC representatives who visited Duane Reade employees to campaign for affiliation. (ALJ Tr. at 1345, 1433-345, 1508-09, 1550, 1804-07.) The second election drew fewer voters and yielded a different result: 344 union members voted for affiliation and only 26 voted against. (G.C. Ex. 44: AAA Certification of Results, dated May 29, 2003; Rizzo Aff. ¶ 4.) The AAA immediately certified those results. (G.C. Ex. 44.) Thereafter, members of the ATC Executive Board assumed positions as Directors and Associate Directors of the newly affiliated union, ATC/Local 338, and became responsible for representing the employees previously under ATC's auspices. (ALJ Tr. at 1802-04, 1854, 2198-2204, 2361-64; D.R. Ex. 43: Affiliation Agreement, dated Apr. 7, 2003 at 3-4.) ATC transferred its treasury to Local 338, and ATC members were not required to pay an initiation fee to Local 338. (D.R. Ex. 43 at 2, 6.) ATC/Local 338 operates out of ATC's offices (ALJ Tr. at 2199, 2205, 2365-66), and its membership is approximately the same size as that of ATC (ALJ Tr. at 2215).
III. Relations Between Duane Reade and ATC/Local 338
Duane Reade did not officially recognize or bargain with the affiliated union, ATC/Local 338. (G.C. Ex. 15: Memorandum to Employees from Jim Rizzo, dated May 29, 2003 ("We shall only honor the May 8, 2003 "NO AFFILIATION" decision."); Pet. Ex. T: Letter from John R. Durso to Anthony Cuti, dated Oct. 11, 2004 (demanding that "Duane Reade bargain with [Local 338] as the exclusive representative of the employees in the appropriate units"); Pet. Ex. U: Letter from Anthony Cuti to State Senator Ada L. Smith, dated Nov. 5, 2004.) Thus, Duane Reade failed to provide ATC/Local 338 with the names, home addresses and telephone numbers of its bargaining unit employees. (ALJ Tr. at 1082-87; G.C. Ex. 21: Letter from James M. Rizzo to John Morro, dated Aug. 29, 2003; G.C. Exs. 45-47: Letters from John Morro to James Rizzo, dated Sept. 15, 2003, Oct. 20, 2003 Dec. 12, 2003.) Moreover, in December 2003, the Company asked employees to encourage customers to sign petitions opposing the union affiliation. (ALJ Tr. at 141-44, 382-85, 458-62.)
There has been a substantial turnover of employees in ATC/Local 338's bargaining unit since 2003. (Affidavit of Nelson Resto, dated Nov. 4, 2004 ("Resto Aff.") ¶ 2; Rizzo Aff. ¶ 5.) Of the 2,253 employees eligible to vote in the May 29, 2003 affiliation election, only 1,055 were Duane Reade employees as of February 5, 2005. (Rizzo Aff. ¶ 5.) The employee turnover contributes to a lack of awareness of union representation. Reynaldo Rosado, an ATC/Local 338 representative, testified that when he visited an ATC/Local 338 store on January 14, 2005, a "male cashier said that he did not know that the employees had a union there." (Reply Affidavit of Reynaldo Rosado, dated Feb. 16, 2005 ("Rosado Reply Aff.") ¶ 3.) At another store in Brooklyn that same month, a pharmacist told Rosado that he was unaware of the union. (Rosado Reply Aff. ¶ 6.) Rosado encountered two other employees who claimed to have been told falsely by their managers that there was no union in their stores. (Rosado Aff. ¶ 7; Rosado Reply Aff. ¶ 9.)
Since the May 29, 2003 affiliation election, Duane Reade has permitted ATC/Local 338 representatives to speak with employees only if they were complying with the terms of the LBFSO's store access clause and were visiting an employee in response to a specific grievance. (ALJ Tr. at 3042; Resto Aff. ¶ 3.) However, many union representatives did not give advance notice prior to store visitations and attempted to talk to employees while they were on duty. (ALJ Tr. at 1450-51, 1537-46, 1803, 1856-58.) In response, managers threatened union representatives with police action if they failed to leave voluntarily and, in some instances, ejected them in front of employees. (ALJ Tr. at 1037-56, 1448-71, 1511-31, 1537-47, 1805-19, 1856-58, 2820-22, 2997-3000, 3200-02, 3356; Reply Affidavit of Nelson Resto, dated Feb. 17, 2005 ¶¶ 7-8; Rosado Reply Aff. ¶¶ 2-6.) In June 2004, Duane Reade wrote to ATC/Local 338 to express its concern that the union's "unannounced visits" violated the LBSFO. (Pet. Ex. Q: Letter from Michelle D. Bergman to John Morro, dated June 4, 2004 ("[Y]ou are required to provide reasonable notice prior to visiting any store and such visits `are not to interfere with the normal operations of the store.'").)
Despite its communication difficulties, the union continued to process grievances and attempted to bargain on behalf of Duane Reade employees. (Affidavit of Henry Hamburger, dated Oct. 26, 2004 ¶¶ 2-4, 7-12; Resto Aff. ¶ 3; Rizzo Aff. ¶ 3; Rosado Aff. ¶¶ 5-6; Affidavit of Seymour Stein, dated Feb. 10, 2005 ("Stein Aff.") ¶ 3(B)-(D).) Duane Reade cooperated with ATC/Local 338 representatives on various employee issues. (Rizzo Aff. ¶¶ 3, 6; Stein Aff. ¶¶ 2-4, 6.) For example, in September 2004, Duane Reade acceded to a union request and participated in a meeting to discuss Duane Reade's proposed incentive plan for pharmacists. (Rizzo Aff. ¶ 3(A); Stein Aff. ¶ 8.) While refusing to bargain with ATC/Local 338 over specific terms of that plan, Duane Reade agreed not to implement it if the union objected. (Resto Aff. ¶ 3.) Stein, Duane Reade's Director of Human Resources, returned 171 calls to ATC/Local 338 representatives about employee grievances between June 2003 and December 2004. (Stein Aff. ¶ 3(B)-(C).) Throughout 2003 and 2004, Duane Reade resolved over forty such grievances with ATC/Local 338. (Rizzo Aff. ¶ 3(B).) The Company also participated in twelve employee grievance arbitrations during that time. (Rizzo Aff. ¶ 3(B); Stein Aff. ¶ 6.)
IV. The Administrative Proceedings
Beginning in April 2003, ATC filed four separate unfair labor practice charges and an amended charge with the Board. (Pet. ¶ 3 Exs. A-E.) In July 2003, the Regional Director consolidated the charges and issued a consolidated complaint. (Pet. Ex. F.) The Regional Director amended the consolidated complaint in October 2003 and again in February 2004. (Pet. ¶ 4(a) Exs. G-H.) In her most recent filing, the Regional Director alleges that beginning in April 2003, Duane Reade violated the Act by interfering with the affiliation elections; interrogating and conducting surveillance of employees with respect to union activities; refusing to recognize and bargain in good faith with ATC/Local 338; refusing ATC/Local 338 representatives access to its stores; and refusing to provide the union with the names, addresses and telephone numbers of employees within its bargaining unit. (Pet. Ex. H.) ALJ Raymond P. Green conducted extensive hearings on these charges between March and June 2004. (Pet. Ex. L.)
On September 29, 2004, the ALJ issued his decision, Duane Reade, Inc., Cases 2-CA-35441 et al., 2004 WL 2235881 (N.L.R.B. Div. of Judges Sept. 29, 2004). The ALJ determined that Duane Reade violated Sections 8(a)(1) and 8(a)(5) of the Act "by refusing to comply with the clear and unambiguous terms of the expired [CBA]'s access provisions." The ALJ also found that Duane Reade violated Section 8(a)(1) of the Act by threatening employees, illegally interrogating employees about union activities, conducting surveillance of employees, distributing "Vote No" buttons and otherwise interfering with the affiliation election. Moreover, the ALJ determined that Duane Reade's actions invalidated the first affiliation election and that the second vote comported with due process. Because the ALJ discerned "substantial continuity between [ATC] and the new entity," he concluded that Duane Reade "was thereafter required to recognize and bargain with" ATC/Local 338 and to allow its representatives store access under the terms of the expired CBA. The ALJ explained:
Section 8(a)(1) of the Act makes it unlawful for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in" Section 7. 29 U.S.C. § 158(a)(1). Section 7, in turn, describes employees' rights "to self-organization, to form, join, or assist labor organizations, to bargain 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." 29 U.S.C. § 157. Pursuant to Section 8(a)(5), an employer has a duty to bargain collectively with the union representing its employees. 29 U.S.C. § 158(a)(5).
[A]fter the second affiliation vote, when [ATC] became a division of Local 338, the new organization became the successor to [ATC] and thereby acquired the bargaining status of the former union. Therefore, it acquired the same right to require bargaining before any unilateral changes were made by the Respondent in the existing terms and conditions of employment. As such, when the Company refused to allow access to representatives of [ACT/Local 338], after the affiliation had been accomplished, it violated section 8(a)(1) and (5) of the Act.
Lastly, the ALJ concluded that Duane Reade violated Section 8(a)(5) by failing to furnish ATC/Local 338 with the employee information it requested.
Duane Reade filed its exceptions to the ALJ's decision on November 29, 2004 and the parties briefed the issues before the Board. After considering the ALJ's decision and the parties' submissions, the Board will adjudicate ATC's charges. The Regional Director estimates that this process could take as long as two years. (Transcript of Oral Argument, dated Mar. 11, 2005 ("Tr.") at 6; see Petitioner's Reply Memorandum in Support of Petition for a Temporary Injunction at 8 ("It is uncertain whether the Board can expedite issuance of a final order given the size of the record and the large number of cases pending before it.").)
DISCUSSION
Section 10(j) of the Act authorizes a district court to grant temporary injunctive relief pending the Board's final decision on an unfair labor practice charge before it. 29 U.S.C. § 160(j). A petition for such relief implicates a two-prong test: The court must find that there is "reasonable cause" to believe that the respondent engaged in an unfair labor practice, and the requested relief must be "just and proper." Hoffman v. Inn Credible Caterers, Ltd., 247 F.3d 360, 365 (2d Cir. 2001);Kaynard v. MMIC, Inc., 734 F.2d 950, 953 (2d Cir. 1984). The petitioner bears the burden of establishing that the requested relief is appropriate. See Seeler v. Trading Port, Inc., 517 F.2d 33, 40 (2d Cir. 1975).
The Regional Director moves this Court to assess "reasonable cause" solely on the basis of the administrative record. Because Duane Reade does not oppose that application (Respondent's Memorandum in Opposition to Temporary Injunction ("D.R. Mem.") at 5 n. 2), this Court will limit its review in this regard to the administrative record.
In analyzing the first prong, a district court need not try the merits of the underlying case and decide whether the employer's actions constitute an unfair labor practice. Inn Credible Caterers, 247 F.3d at 365; Silverman v. Major League Baseball Players Relations Comm., Inc., 67 F.3d 1054, 1059 (2d Cir. 1995); Kaynard v. Indep. Routemen's Assoc., 479 F.2d 1070, 1072 (2d Cir. 1973). Thus, "the Regional Director is not required to show that an unfair labor practice occurred, or that the precedents governing the case are in perfect harmony, but only that there is `reasonable cause to believe that a Board decision finding an unfair labor practice will be enforced by a Court of Appeals.'" Kaynard v. Mego Corp., 633 F.2d 1026, 1032-33 (2d Cir. 1980) (quoting McLeod v. Bus. Mach. Office Appliance Mechs. Conference Bd., 300 F.2d 237, 242 n. 17 (2d Cir. 1962)).
"[T]he district court must give considerable deference to the Board or Regional Director when making a determination of reasonable cause." Inn Credible Caterers, 247 F.3d at 370. Doubts are resolved in the Regional Director's favor if her version of the facts is "within the range of rationality." Mego, 633 F.2d at 1031; see Trading Port, 517 F.2d at 37 ("[T]he Regional Director should be given the benefit of the doubt in a proceeding for § 10(j) relief."). Even "on questions of law, the Board's view should be sustained unless the court is convinced that it is wrong."Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047, 1051 (2d Cir. 1980); see Danielson v. Joint Bd. of Coat, Suit Allied Garment Workers' Union, I.L.G.W.U., 494 F.2d 1230, 1245 (2d Cir. 1974).
The administrative record provides reasonable cause to believe Duane Reade violated Sections 8(a)(1) and 8(a)(5) of the Act beginning in April 2003. First, the evidence suggests that Duane Reade interfered with both affiliation elections. (ALJ Tr. at 177-81, 238-59, 353-69, 445-55, 857-64, 444-51, 857-62, 1249-54, 1413-32, 1745-47, 1840, 2882-87; G.C. Exs. 23, 25 28.) Second despite prematurely declaring a bargaining impasse and unlawfully implementing the LBFSO, Duane Reade, 2004 WL 2096501, at *2, and despite the fact that ATC/Local 338 is a continuation of ATC, the evidence suggests that Duane Reade: (1) restricted ATC's store access in April and May of 2003, and denying access to ATC/Local 338 thereafter; (2) refused to furnish the names, addresses and telephone numbers of employees in ATC/Local 338's bargaining unit; and (3) refused to bargain with the affiliated union. Indeed, for purposes of this proceeding, Duane Reade concedes that this evidence sufficiently establishes reasonable cause to believe that the Company committed unfair labor practices. (D.R. Mem. at 5; Tr. at 16.)
II. Just and Proper
In assessing whether injunctive relief under Section 10(j) is just and proper, a district court "must act in accordance with the general rules of equity," recognizing that such an injunction represents an "extraordinary remedy." Mego, 633 F.2d at 1033;see McLeod v. Gen. Elec. Co., 366 F.2d 847, 849 (2d Cir. 1966) (stating that Section 10(j) provides a limited basis for a federal court to issue injunctions in labor disputes but "in no way change[s] the extraordinary nature of the injunctive remedy"). Accordingly, "[t]he Board, generally, has properly restricted itself to seeking injunctions only in cases of extraordinary circumstances," and "[t]he courts have generally issued [S]ection 10(j) injunctions only to preserve the status quo while the parties are awaiting the resolution of their basic dispute by the Board." Gen. Elec. Co., 366 F.2d at 849, 850; accord MMIC, 734 F.2d at 953-54; Mego, 633 F.2d at 1033 (holding that a Section 10(j) injunction is "improper in the absence of a showing of the necessity of preserving the status quo or of preventing irreparable harm"); Trading Port, 517 F.2d at 38-40.
A. The Regional Director's Delay
Duane Reade first contends that the requested injunction would not be just and proper because the Regional Director delayed in seeking relief from this Court.
The time that elapses between the filing of an administrative complaint and the Board's 10(j) petition is relevant to the propriety of a temporary injunction. See MMIC, 734 F.2d at 954; Seeler v. H.G. Page Sons, Inc., 540 F. Supp. 77, 79 (S.D.N.Y. 1982); see also Sharp v. Webco Indus., Inc., 225 F.3d 1130, 1135-36 (10th Cir. 2000); Miller v. Cal. Pac. Med. Ctr., 991 F.2d 536, 543-44 (9th Cir. 1993). Nonetheless, a district court reviewing such a petition must be cognizant of the administrative obstacles attendant to the Board's decisionmaking and its need to ensure that a federal court injunction is warranted. See MMIC, 734 F.2d at 954 ("The Board does not take lightly the commencement of a § 10(j) action."); see also Webco, 225 F.3d at 1136; Pascarell v. Vibra Screw Inc., 904 F.2d 874, 881 (3d Cir. 1990) ("[T]here is a certain leniency that the Board must be afforded."). Often it is only after filing a complaint that the Board learns facts indicating that an injunction is proper, as may be evidenced by the filing of an amended complaint. See Webco, 225 F.3d at 1136 (four and a half months between amended complaint and injunction petition not unreasonable).
The Regional Director consolidated the administrative charges in July 2003 and amended the consolidated complaint in October 2003 and again in February 2004. (Pet. Exs. F-H.) The ALJ issued his decision in September 2004, providing the imprimatur to proceed with a Section 10(j) petition. In fact, the Regional Director represents that she decided to seek injunctive relief shortly after the administrative hearing. (Tr. at 5.) Nonetheless, the Regional Director did not file this petition until January 2005. Even if such a delay suggests that the Regional Director does not deem the charges serious, see H.G. Page Sons, 540 F. Supp. at 79, Duane Reade's employees and the public would be the beneficiaries of a temporary injunction — not the Regional Director. This Court will not compromise these public interests based on speculation that the Board should have acted more swiftly. See Hirsch v. Dorsey Trailers, Inc., 147 F.3d 243, 249 (3d Cir. 1998); DeProspero v. House of the Good Samaritan, 474 F. Supp. 552, 557 (N.D.N.Y. 1978) ("[N]either the employees nor the public should be required to abide a penalty imposed for Board delay . . . since they exert no direct control over the Board's administrative processes."); see also MMIC, 734 F.2d at 954. Accordingly, the Board's delay, if any, is insufficient cause to deny the injunction it requests.
B. Propriety of an Injunction
The Regional Director seeks an injunction prohibiting Duane Reade from (i) restricting ATC/Local 338 representatives' in-store visitation of bargaining unit employees; (ii) refusing to provide ATC/Local 338 with the names and contact information for those employees; (iii) interfering with employee votes on union affiliation; and (iv) interrogating and engaging in surveillance of employees with respect to their union activities or creating the impression thereof. (Pet. at 17-19.) The proposed injunction would also require Duane Reade to recognize and bargain in good faith with ATC/Local 338. (Pet. at 18-19.) Duane Reade contends that the Regional Director has failed to demonstrate that the requested relief cannot be effectively achieved by a Board order, obviating the need for an interim court injunction.
A Section 10(j) temporary injunction is "just and proper" only if, left unchecked, the respondent's conduct "threaten[s] to render the Board's processes totally ineffective by undermining the force of its remedial power." Inn Credible Caterers, 247 F.3d at 369. An injunction is only appropriate if preserving or restoring the status quo is necessary to effectuate a final Board order. See Mego, 633 F.2d at 1033; Gen. Elec. Co., 366 F.2d at 850 n. 3 ("The legislative history of Section 10(j) indicates that it was added to the Act to enable the Board to restore or preserve the status quo while it is acting upon an unfair labor practice charge."). Moreover, "the status quo which deserves protection under § 10(j) is not the illegal status quo which has come into being as a result of the unfair labor practices being litigated. Instead, Section 10(j) was intended as a means of preserving or restoring the status quo as it existed before the onset of unfair labor practices." Trading Port, 517 F.2d at 38 (citations omitted).
Prior to Duane Reade's alleged conduct beginning in April 2003, ATC communicated with its bargaining unit members primarily through store visits. (ALJ Tr. at 102-30, 1410-11, 1803; Rosado Aff. ¶ 2.) The CBA authorized ATC to enter Duane Reade stores and speak with employees in its bargaining unit "at any time for the adjustment of disputes, grievances or any other matters that may require their presence." (G.C. Ex. 8 at 2.) Although Duane Reade was required to permit ATC access under the terms of the expired CBA even after it declared an impasse in December 2001 and ATC/Local 338 continued the unaffiliated union's operations, Duane Reade continues to hold ATC/Local 338 to the LBFSO's access terms. (ALJ Tr. at 1037-56, 1448-71, 1511-31, 1537-46, 1803-19, 1856-58, 2820-22, 2997-3000, 3042, 3200-02, 3356; Pet. Ex. Q; Resto Aff. ¶ 3.) Moreover, Duane Reade has failed to provide its employees' names and contact information to the union. (ALJ Tr. at 1082-87; G.C. Exs. 21, 45-47.) Unsurprisingly, some members of ATC/Local 338's bargaining unit are unaware that the union serves employees in those stores. (Rosado Aff. ¶ 7; Rosado Reply Aff. ¶¶ 3, 6, 9.)
By restricting ATC/Local 338's access to its bargaining unit stores and refusing to provide the union with necessary contact information, Duane Reade is impairing ATC/Local 338's primary mode of communication with its bargaining unit. Such actions have decreased the union's visibility among the individuals it represents. Moreover, because Duane Reade has refused to bargain with the union, interrogated employees about the union and engaged in surveillance of their union activities, it is reasonable to believe that employees may have lost confidence in the ATC/Local 338's ability to represent them vis-á-vis Duane Reade. This effect is particularly acute given the high attrition rate among Duane Reade employees (Resto Aff. ¶ 2; Rizzo Aff. ¶ 5) and the increasing percentage of the bargaining unit who have had little or no positive contact with ATC/Local 338.
In Hoffman v. Inn Credible Caterers, Ltd., the Second Circuit recognized "a pressing need to preserve the status quo" when the effects of an employer's unfair labor practices will become further entrenched as the contingent of non-union workers increases. 247 F.3d at 369. Moreover, a temporary injunction is appropriate if support for the union will wither by the time a final Board order issues. See Inn Credible Caterers, 247 F.3d at 369; Trading Port, 517 F.2d at 38. Courts have also ordered interim injunctive relief to redress an employer's failure to provide the union with basic employee information. See Mattina v. Chinatown Carting Corp., 290 F. Supp. 2d 386, 394-96 (S.D.N.Y. 2003) ("[P]roviding the Union with the names and dates of hire of CCC's employees would allow the Union to properly do its job and interact with all of CCC's employees."); Pascarell v. Gitano Group, Inc., 730 F. Supp. 616, 625 (D.N.J. 1990).
ATC/Local 338's position among its bargaining unit employees will continue to weaken until the Board finally resolves the charges before it. Accordingly, this Court holds that absent an injunction, a final Board order may be unable to restore ATC/Local 338 to ATC's position prior to the alleged unfair labor practices.
1. Acts Constituting Unfair Labor Practices in Violation of Section 8(a)(1)
As the ALJ found, there is at least reasonable cause to believe that Duane Reade violated Section 8(a)(1) of the Act by interrogating employees about union activities, conducting surveillance over those activities and interfering with the affiliation elections in myriad ways. Moreover, the interrogation and surveillance continued after the May 2003 elections when Duane Reade encouraged its employees to voice their opposition to the affiliated union. (ALJ Tr. at 141-44, 382-85, 458-62.) Thus, with respect to the interrogation and surveillance violations, an injunction restraining Duane Reade from further eroding support for ATC/Local 338 is appropriate until the Board issues its final order.
However, the Regional Director has not presented any evidence to show that enjoining Duane Reade from interfering with future affiliation votes is "necessary to prevent irreparable harm or to preserve the status quo." Inn Credible Caterers, 247 F.3d at 368; see Mego, 633 F.2d at 1033. There is no suggestion that another affiliation election is imminent. Thus, any permanent relief ordered by the Board in this regard will not be rendered "totally ineffective" absent the same relief from this Court on a temporary basis, cf. Inn Credible Caterers, 247 F.3d at 369, and Duane Reade need not be enjoined from interfering with future affiliation votes.
2. Interim Bargaining Order
Bargaining orders are disfavored; rather, "[t]he clearly preferred remedy for violation of the Act is an election." NLRB v. Marion Rohr Corp., 714 F.2d 228, 230 (2d Cir. 1983); see NLRB v. Knogo Corp., 727 F.2d 55, 60 (2d Cir. 1984); NLRB v. Pace Oldsmobile, Inc., 739 F.2d 108, 110 (2d Cir. 1984). "This preference reflects the important policy that employees not have union representation forced upon them when, by exercise of their free will, they might choose otherwise." Marion Rohr, 714 F.2d at 230. Nonetheless, an interim bargaining order may be a necessary component of a Section 10(j) injunction to maintain or restore a union's support among its bargaining unit members.See Inn Credible Caterers, 247 F.3d at 370; MMIC, 734 F.2d at 953-54; Palby Lingerie, 625 F.2d at 1054-55; Trading Port, 517 F.2d at 37-40 (citing NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)). An interim bargaining order serves "to prevent irreparable harm to the union's position [among employees], to the adjudicatory machinery of the NLRB, and to the policy of the Act in favor of the free selection of collective bargaining representatives." Trading Port, 517 F.2d at 39.
Where the conduct alleged to constitute an unfair labor practice is "flagrantly violative of the Act," the Regional Director must demonstrate that "the union at one point had a clear majority and that the employer then engaged in such egregious and coercive unfair labor practices as to make a fair election impossible." Trading Port, 517 F.2d at 39-40; see Marion Rohr, 714 F.2d at 230. In "less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes," the court should take into account "the extensiveness of the employer's unfair practices . . . and the likelihood of their recurrence in the future." NLRB v. J. Coty Messenger Serv., Inc., 763 F.2d 92, 99 (2d Cir. 1985) (quoting Gissel, 395 U.S. at 614). "[E]vents subsequent to the employer's violations, such as the passage of time and the substantial turnover of employees, are relevant and important factors and should be considered." Marion Rohr, 714 F.2d at 231; see J. Coty, 763 F.2d at 100-01; Pace Oldsmobile, 739 F.2d at 111. "[W]hen there has been a large turnover in employees between unfair practices and a Board's order, `[t]he effect of a bargaining order could thus easily be to impose upon the employees a union not desired by the majority of them.'" NLRB, 727 F.2d at 60 (quoting J.J. Newberry Co. v. NLRB, 645 F.2d 148, 154 (2d Cir. 1981)).
Over two years have elapsed since the May 29, 2003 vote in which ATC's bargaining unit elected to be represented by a union affiliated with Local 338. Since then, over half of the employees who were eligible to participate in that vote have left Duane Reade's employ. (Resto Aff. ¶ 2; Rizzo Aff. ¶ 5.) As such, this Court cannot conclude that a majority of the current bargaining unit wishes ATC/Local 338's to bargain on its behalf and that ordering Duane Reade to bargain with the union is in the best interests of those employees. See Knogo, 727 F.2d at 60;Marion Rohr, 714 F.2d at 230 ("A bargaining order is justified only when the Board demonstrates that an election is unlikely to reflect the uncoerced preference of the bargaining unit."). Moreover, while there is reasonable cause to believe that Duane Reade has violated the Act, there are only scant reports of bargaining unit employees unaware of ATC/Local 338's existence. (Rosado Aff. ¶ 7; Rosado Reply Aff. ¶¶ 3, 6, 9.)
In fact, the Regional Director de-emphasizes the interim bargaining order for which she petitions, characterizing the Board's request for interim relief as "relatively limited, requiring only that Respondent provide to the Section 9(a) bargaining representative access to and information about the unit employees." (Reply Memorandum of the Regional Director in Support of Temporary Injunction at 4.)
Accordingly, this Court does not conclude that the Company's conduct undermined the fairness of any future union election and denies the Regional Director's petition for an interim bargaining order.
3. Access to Stores
Both parties dispute the status quo prior to April 2003 with respect to union access into Duane Reade stores. Each presents conclusory and contradictory testimony on this issue. Duane Reade representatives maintain that the more restrictive terms of the LBFSO were implemented as soon as the Company declared a bargaining impasse with ATC. (ALJ Tr. at 92.) From December 2001 through May 2003, Duane Reade asserts, the company required ATC representatives to provide reasonable advance notice of store visits, to identify themselves to store managers upon entering a store and to refrain from speaking to employees while they were on duty, on the selling floor or in the stock room. (Rizzo Aff. ¶ 2; Stein Aff. ¶ 7.)
The Regional Director maintains that the LBFSO was not implemented until Stein's email in April 2003 and that union representatives enjoyed relatively unfettered access under the CBA until that time. (Tr. at 11.) Indeed, union representatives testified that prior to April 2003, they did not provide store managers with prior notice and were not required to identify themselves upon entering a store to speak with employees. (ALJ Tr. at 1411-12.) However, most store managers were familiar with the three union representatives who conducted store visitations, making formal identification unnecessary. (ALJ Tr. at 106-07.)
Although the evidence is inconclusive, these arguments miss the point. If the issue was only one of the conditions for union access, the status quo ante could readily be restored by a final Board order without the need for interim court relief. Here, however, the issue is not just access but the employees' awareness of the union's existence. The Regional Director has not demonstrated that permitting access on a more limited basis during this interim period would not adequately preserve or restore the union's relationship with its members. Accordingly, the access provisions of the LBFSO set forth a reasonable set of conditions, and requiring Duane Reade to comply with them is just and proper.
CONCLUSION
For the reasons set forth above, this Court concludes that there is reasonable cause to believe that Duane Reade has committed violations of the National Labor Relations Act, and temporary injunctive relief is just and proper. Accordingly, the Regional Director's petition is granted in part and denied in part.
It is hereby
ORDERED that Duane Reade, Inc., its officers, representatives, agents, servants, employees, attorneys and other persons acting in concert or participating with them, are enjoined and restrained from:
(1) Interrogating employees about their union activities;
(2) Soliciting employees to sign petitions to decertify Allied Trades Council, Division of Local 338, RWDSU/UFCW, AFL-CIO, or to sign petitions that would evince their non-support for the affiliated union;
(3) Creating the impression that its employees' union activities are under surveillance;
(4) Engaging in surveillance of employees' union activities; and it is further
ORDERED that Duane Reade, Inc., its officers, representatives, agents, servants, employees, attorneys and other persons acting in concert or participating with them, shall permit representatives of Allied Trades Council, Division of Local 338, RWDSU/UFCW, AFL-CIO to visit with employees in the bargaining unit, provided that
(1) Allied Trades Council, Division of Local 338, RWDSU/UFCW, AFL-CIO shall designate three (3) representatives who will be engaged in such visitations;
(2) Allied Trades Council, Division of Local 338, RWDSU/UFCW, AFL-CIO representatives shall provide Duane Reade with 24 hours notice prior to any such visitation;
(3) Allied Trades Council, Division of Local 338, RWDSU/UFCW, AFL-CIO representatives shall promptly identify themselves to a store manager upon entering a store; and
(4) Allied Trades Council, Division of Local 338, RWDSU/UFCW, AFL-CIO representatives are not to speak to employees while those employees are on-duty, on the selling floor, or in the stock room; and it is further
ORDERED that, upon request of Allied Trades Council, Division of Local 338, RWDSU/UFCW, AFL-CIO, Duane Reade, Inc. shall furnish in writing the current names, home addresses and telephone numbers of all employees who are in the collective-bargaining unit; and it is further
ORDERED that Duane Reade, Inc. shall post copies of this Court's Order dated June 8, 2005 at all 142 stores to be represented by Allied Trades Council, Division of Local 338, RWDSU/UFCW, AFL-CIO, at all locations where the company's notices to unit employees are customarily posted; maintain these postings free from all obstructions and defacements pending the Board's final adjudication of the administrative case; and grant agents of the Board reasonable access to these facilities to monitor compliance with this posting provision; and it is further
ORDERED that, by June 28, 2005, Duane Reade, Inc. shall file a sworn affidavit from a responsible official setting forth with specificity the manner in which Duane Reade, Inc. has complied with the terms of this Memorandum and Order and the June 8, 2005 Order, including the identification of those locations where the June 8, 2005 Order has been posted.
The preliminary injunction granted herein shall remain in force and effect until the adjudication of the Board charges at issue here becomes final, at which time the injunction shall expire automatically. The parties shall inform this Court immediately of any disposition of the underlying administrative proceeding.
The Clerk of the Court is directed to close this case, subject to its being reopened as necessary to enforce compliance with the Court's Order herein, for which purposes this Court shall retain jurisdiction over the matter and the parties.
SO ORDERED.