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October 10, 1986

DANIEL SILVERMAN, Regional Director, Region 2 of the NATIONAL LABOR RELATIONS BOARD, Petitioner,

The opinion of the court was delivered by: SWEET


Daniel Silverman, Regional Director, Region 2 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board (the "Board" by order to show cause seeks a preliminary injunction to require the respondent Imperia Foods, Inc. ("Imperia") to rehire fourteen employees and to take certain other action. For the reasons set forth below, a preliminary injunction will issue.

 Prior Proceedings

 On March 24, 1986, Local Union No. 277, International Brotherhood of Teamsters, Chauffeurs & Warehousemen of America (the "Union"), filed a charge against Imperia alleging unfair labor practices violating Section 8(a)(1), (3) and (5) of the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq. The Union alleged that Imperia discharged fourteen of its sixteen unit employees on March 24, 1986 because the unit employees authorized the Union to commence a strike at Imperia's New York facility and accelerated the relocation of its business operations from its New York facility to New Jersey without notifying the Union and without affording the Union an adequate opportunity to negotiate and bargain amounting to a repudiation of its collective bargaining relationship with the Union.

 On May 30 the Regional Office issued a complaint alleging violations of Section 8(a)(1), (3) and (5) of the Act. Imperia in its answer admitted the discharge and the accelerated relocation of its operations from New York to New Jersey but denied the charges numbered 12(b)-19, which allege various violations of the Act. Imperia also set forth various affirmative defenses alleging that the Union refused to meet and bargain, that the last collective bargaining agreement between Imperia and Local 277 expired on February 28, 1986, and that the Union encouraged its members to commit acts of sabotage, to refuse overtime work, and to coerce numerous of respondent's customers to cease doing business with Imperia.

 Simultaneously with the filing of the charge with the Board, the Union filed a request for injunctive relief pursuant to Section 10(j) of the Act. On July 17, 1986, the Regional Office of the Board filed this order to show cause for a preliminary injunction with the court. Pursuant to a consent order of July 21, the parties agreed that the official transcript and exhibits of the unfair labor practice hearing held before Administrative Law Judge Arthur Herman would be submitted in lieu of an evidentiary hearing. The hearing on the charges was completed on August 12 and the Board's brief was submitted on September 2. An informal request to extend the time for Imperia's brief to September 11 was granted without Board opposition, and a further extension was granted to September 17 over the objection of the Board a"d on that day the petition was fully submitted.

 The Facts

 Imperia is presently engaged in the processing and sale of granted cheese and bread crumbs. Ira Weissman ("Weissman") is the president and a 50% shareholder of the corporation. Sonny Ehrenworth ("Ehrenworth") is the vice president of Imperia and the other 50% shareholder of the corporation. The predecessor company to Imperia was a distributor known as A&M Dairy Products ("A&M") which prior to 1955 negotiated the initial labor agreement with the Union, at which time Imperia became the successor company.

 More recently, an industry association known as the Butter & Egg Association (the "Association") has negotiated industry-wide collective bargaining contracts with the Union, which represented chauffeurs, helpers, dairy and food handlers, egg candlers, egg inspectors, butter packaging employees, cheese packing employees, egg breakers and office employees. Overtime, the membership in the Association has shifted from being primarily food processors to food distributors, and as a processor, Weissman has become less and less satisfied with the agreements the Association has reached with the Union. Imperia was a member of the Association and a signatory to the bargaining agreement with the Union, which expired on February 28, 1986.

 Imperia was located at 168 Duane Street, a five-story building which consisted of approximately 17,000 square feet. It concluded it had to move out of this old, five-story building with unreliable elevators into a single-floor efficient, flowing manufacturing operation in the tri-state area. Imperia's net sales over the past three years have remained in the 5.0 to 5.2 million dollar area, while its costs were increasing significantly. According to his testimony, in March or April of 1985, Weissman entered into a transaction with Meile Rockefeller who wished to turn 168 Duane Street into coop apartments and agreed to trade the Duane Street building for a building that Weissman would designate in the ensuing 18 months. The advantage of this swap over a more traditional method of purchase and sale of real property is that the swap was tax free.

 After Weissman signed the contract, rumors of a move began to circulate among the employees. To dispell uncertainty, Weissman held a company meeting at which he confirmed that the Duane Street Building would be sold and the business relocated to a yet unknown location. After weeks of investigation, Weissman located a suitable building in South Plainfield, New Jersey. In or about August, 1985, Weissman again met with his employees and reassured them that he wanted them to remain in his employ. He told them about the building in New Jersey. During the four months between the April and the August meetings, Imperia lost three to four employees who, according to Weissman, were unwilling to commute to the proposed New Jersey facility.

 On November 22, 1985 the swap took place. Before and after the 22nd, Weissman met with architects, and projected the move into the new plant for late April. 1986, or, perhaps, earlier. In early December, 1985, the Union sent a 90-day notice to Imperia requesting negotiations for a new contract and in early January, 1986, Weissman received a telephone call from the chief negotiator for the Association. Weissman told the chief negotiator that he wanted to negotiate directly with the Union. No formal letter of withdrawal from the Association was made, nor was the Union notified directly of Imperia's position. Later in January, 1986, Weissman received a notice requesting the payment of dues to rejoin the Association and authority to negotiate on Imperia's behalf. Weissman did not pay the dues nor did he sign the authorization form. After another call from the Association, Weissman requested the negotiator to advise Anthony Distini ("Distini"), president of the Union, that Imperia wanted to negotiate a separate contract with the Union.

 Many of the unit employees lived in the Bronx, already far from the Duane Street plant, and the new plant was 35 miles further from Duane Street. Weissman was concerned that some of the employees might not undertake this additional commute to and from work every day. A number of Imperia employees visited the South Plainfield facility, and one repaired and rehabilitated machinery there. Although some union members and perhaps its president were aware of some of the details of the intended relocation, no notice as such was given to the Union or the shop steward.

 However, Jasper Brown, vice president of the Union ("Brown"), testified that on his bi-weekly visits to Imperia, the unit employees told him about the relocation, both in September, 1985 and again in December, 1985 and January, 1986 when he was told that machinery ...

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