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DEPROSPERO EX REL. NLRB v. HOUSE OF THE GOOD SAMAR

November 21, 1978

Richard L. DeProspero, Acting Regional Director of the Third Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner,
v.
The House Of the Good Samaritan and the Samaritan-Keep Nursing Home, Inc., Respondents.



The opinion of the court was delivered by: MUNSON

MEMORANDUM-DECISION AND ORDER

The acting Regional Director of the National Labor Relations Board has commenced this proceeding pursuant to 29 U.S.C. § 160(j), seeking a preliminary injunction to restrain the respondents from further violating the National Labor Relations Act through their refusal to bargain with the Licensed Practical Nurses and Technicians of New York, Inc., Local 721, Service Employees International Union, AFL-CIO-CLC (Local 721). The Court scheduled a hearing to determine the underlying facts, at which time the parties entered into a stipulation establishing subject matter jurisdiction and conceding, for the limited purposes of this proceeding, that the Regional Director had reasonable cause to believe that an unfair labor practice has been committed. As a result, the only remaining issue is whether temporary injunctive relief would be "just and proper" in the circumstances of this case.

BACKGROUND

 The House of the Good Samaritan and the Samaritan-Keep Nursing Home, Inc. are nursing care facilities in Watertown, New York. On September 13, 1974, the licensed practical nurses employed by the respondents elected the Licensed Practical Nurses of New York, Inc. as their collective bargaining representative. Since this time, the respondents have consistently dealt the Licensed Practical Nurses of New York as the exclusive representative of their employees and have entered into successive collective bargaining agreements covering the period from September 13, 1974, through August 31, 1978. This working relationship persisted until June 7, 1978, when the nursing homes refused to negotiate a new contract with the union, claiming that it no longer represented the employees.

 To understand the employers' position, it is necessary to recount that on May 21, 1978, the Licensed Practical Nurses of New York, Inc. entered into a permanent affiliation agreement with the Service Employees International Union, AFL-CIO-CLC and thereafter became known as the Licensed Practical Nurses and Technicians of New York, Inc., S.E.I.U., AFL-CIO-CLC. However, taking the position that Local 721 is a new union, the nursing homes have refused to bargain with them. Thus, on July 14, 1978, the union was compelled to file a charge with the NLRB, as a result of which, General Counsel investigated the allegations and issued a complaint on August twenty-first. The acting Director of the Third Region then petitioned this Court for a temporary restraining order on October 4, 1978, at which time a stipulation was offered and testimony was taken concerning the propriety of injunctive relief.

 The parties' stipulation established that, for the purposes of this proceeding, there is reasonable cause to believe that the nursing homes have been, and continue to be, committing an unfair labor practice by refusing to recognize and negotiate with Local 721. As noted in the margin, this Court has found a jurisdictional basis for this proceeding, *fn1" and has taken testimony concerning the potential for irreparable injury should preliminary injunctive relief be denied. This testimony has disclosed that if a restraining order is not issued, the employees may strike in an effort to force their employer to negotiate a new contract. Moreover, the respondents' continued refusal to bargain will probably weaken the union's strength and may very well result in net annual losses to some of the employees.

 GENERAL PRINCIPLES

 Section 10(j) of the National Labor Relations Act provides for the issuance of a temporary restraining order pending the final disposition of an unfair labor practice charge. 29 U.S.C. § 160(j). An order granting this type of preliminary relief is appropriate where:

 (1) there is reasonable cause to believe that an unfair labor practice has been committed; and

 (2) such relief is "just and proper".

 Seeler v. Trading Port, Inc., 517 F.2d 33 (2d Cir. 1972). *fn2" In passing upon the evidence presented in support of a 10(j) application, the petitioner will be entitled to the benefit of whatever inferences may reasonably be drawn. Danielson v. Joint Board of Coat, Suit & Allied Garment Workers' Union, ILGWU, 494 F.2d 1230, 1245 (2d Cir. 1974). However, the District Court's role in a 10(j) proceeding is limited to ascertaining whether the foregoing criteria have been satisfied and it will not determine which party should ultimately prevail. N. L. R. B. v. Acker Industries, Inc., 460 F.2d 649, 652 (10th Cir. 1972); Angle v. Sacks, 382 F.2d 655, 661 (10th Cir. 1967).

 REASONABLE CAUSE

 The right of a union local to continue collective bargaining on behalf of its constituents following affiliation with an international union turns on a factual issue is the "new" union a continuation of the old organization under a new name and affiliation, or is it a substantially different representative? National Labor Relations Board v. Newspapers, Inc., 515 F.2d 334 (5th Cir. 1975); N. L. R. B. v. Commercial Letter, Inc., 496 F.2d 35, 39 (8th Cir. 1974); N. L. R. B. v. Hershey Chocolate Corp., 297 F.2d 286 (3rd Cir. 1961); cf. Abrams v. Carrier Corp., 434 F.2d 1234, 1243-1244 (2d Cir. 1970), cert. den. 401 U.S. 1009, 91 S. Ct. 1253, 28 L. Ed. 2d 545 (1971). In making this determination, the Board will consider whether the employees still control their union officers and whether these officers continued to represent the employees after the affiliation. American Bridge Division, U. S. Steel Corp. v. N. L. R. B., 457 F.2d 660, 663 (3rd Cir. 1972). The Board will also consider whether the affiliation was achieved in a democratic manner, whether the Local continued to function as it had before, and whether the prescribed affiliation procedures had been followed. Union Carbide Corp. v. NLRB, 116 N.L.R.B. 491 enfd. 244 F.2d 672 (6th Cir. 1957). Thus, by conceding that the Regional Director has reasonable cause to believe that an unfair labor practice has been ...


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