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May 13, 1995

RICHARD L. AHEARN, Regional Director of the Third Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, against THE HOUSE OF THE GOOD SAMARITAN d/b/a SAMARITAN MEDICAL CENTER and SAMARITAN KEEP NURSING HOME, INC., Respondents.

Thomas J. McAvoy, Chief U.S. District Judge

The opinion of the court was delivered by: THOMAS J. MCAVOY


 The House of the Good Samaritan ("Hospital") is a not-for-profit corporation which operates an acute care hospital in Watertown. The Samaritan-Keep Home, Inc. ("Home") is a separately incorporated not-for-profit corporation which runs a nursing home in Watertown (together the "Respondents"). Local 721 of the Service Employees International Union ("Union") represents separate collective bargaining units of technicians and licensed practical nurses employed by the Hospital and the Home. At all times relevant to this proceeding, the Home has not employed members of the technician bargaining unit. The technician bargaining unit at issue in this proceeding consists of the employees of the Radiology Department, Laboratory, Operating Room, and Cardiopulmonary Department of the Hospital.

 In this motion, the National Labor Relations Board (NLRB) ("Petitioner") seeks a temporary injunction against the Hospital and the Home while matters pending before the NLRB await final disposition. This action began when the Union filed unfair labor practice charges against the Respondents alleging, inter alia, that the Respondents provided unlawful assistance to employees in the circulation of a petition to decertify the Union, coerced employees into signing the petition, and questioned an employee about his Union sympathies. Respondents argue that the Union's charges are actually an attempt to block a secret ballot election and to prevent employees from exercising their rights guaranteed under the National Labor Relations Act (NLRA).

 More specifically, the relevant facts arise from the August 1994 circulation of a petition to decertify the Union. Respondents assert that it was a member of the technician bargaining unit, Carolyn Husted, who circulated the petition and that the Respondents used no coercion to force employees to sign. On August 23, 1994, Husted presented the petition, signed by 62 of the 81 members of the technician bargaining unit, to the Hospital's Human Resources Director, Timothy Ryan. The Respondents then filed an "RM petition" with the Regional Director of the NLRB requesting that he order a secret ballot election to determine the wishes of the bargaining unit members on the subject of union representation. On the same day, Respondents withdrew recognition of the Union and notified the Union that it would honor the collective bargaining agreement until it expired on October 31, 1994, but would not deal with the Union in negotiating the next labor contract.

 On August 29, 1994, the Union filed an unfair labor practice charge with the NLRB alleging that the Respondents coerced employees into signing the petition in violation of NLRA § 8(a)(1) and that the Respondents failed to provide information and to bargain collectively in violation of NLRA § 8(a)(5). An investigation was conducted by the NLRB and a complaint was issued on November 14, 1994.

 On November 21, 1994, Husted filed a decertification petition with the NLRB, which the NLRB dismissed on December 8, 1994 because of the pending unfair labor charge. An administrative evidentiary hearing was held by the NLRB on January 10 and 11, 1995. The NLRB now seeks a temporary injunction which will remain in place until it has made its decision on the charges. In making this determination, the NLRB asks that the court only consider the record from the administrative hearing of January 10th and 11th.


 A. Standard for Granting an Injunction

 NLRA § 160(j) allows the NLRB, upon issuance of a complaint charging that a person has engaged in unfair labor practices, to petition the United States district court for appropriate temporary relief or a restraining order. The district court, upon the filing of a petition for such relief, has jurisdiction to grant the NLRB such temporary relief as it deems just and proper. 29 U.S.C. § 160(j). This section allows the NLRB "to seek temporary relief when, in its discretion, [it] determines that unrelieved delay in remedying the unfair labor practices would frustrate the basic purpose of the [NLRA]." Silverman v. Imperia Foods, Inc., 646 F. Supp. 393, 397 (S.D.N.Y. 1986). The issue for the district court to determine is: (1) whether there is reasonable cause to believe that the unfair labor practices complained of have been committed in violation of the NLRA; and, if so, (2) whether the injunctive relief sought is just and proper. Id.; Kaynard v. MMIC, Inc., 734 F.2d 950, 953 (2d Cir. 1984).

 B. Evidence Which Must Be Presented

 Both parties agree that the determination of reasonable cause may be made exclusively on the record of the administrative proceeding which took place on January 10th and 11th. This understanding is supported by case law. See, e.g., Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047, 1050-51 (2d Cir. 1980) (in which the court used the record of an NLRB hearing as the basis for determining reasonable cause). Thus, the court relies on the record of the January 10 and 11, 1995 NLRB hearing as the basis for determining reasonable cause.

 However, the parties disagree as to the evidence which the court must examine in making its decision on whether temporary injunctive relief is just and proper. The Petitioner argued that the decision on injunctive relief may also be made solely on the record from the NLRB hearing. The Respondents, on the other hand, asserted that the testimony and evidence from the NLRB hearing does not address the issue of whether injunctive relief is just and proper.

 Case law appears to have sided with both parties. In some actions, the court has based its decision entirely on the NLRB administrative record. See, e.g., Gottfried v. Frankel, 818 F.2d 485, 493 (6th Cir. 1987) (noting that the court's decision on a section 10(j) does not require an evidentiary hearing). Other courts have allowed the parties to stipulate to a decision based solely on the administrative record, but have noted that although this practice is allowed, it is not ideal because the administrative record tends to offer little evidence relevant to the determination of the need for injunctive relief. Dunn v. Pilgrim Industries, Inc., 624 F. Supp. 987, 992 n.1 (E.D. Tex. 1985). Still others have held evidentiary hearings to decide the issue. See Arlook v. S. Lichtenberg & Co., 952 F.2d 367, 371 (11th Cir. 1992) (in which the court heard live testimony from company employees and union representatives); Hirsch v. Pick-Mt. Laurel Corp., 436 F. Supp. 1342, 1346 (D.N.J. 1977) (in which the court held a three-day evidentiary hearing); Seeler v. H.G. Page & Sons, Inc., 540 F. Supp. 77, 78 (S.D.N.Y. 1982) (in which the court accepted a memorandum of law and an oral explanation of the need for injunctive relief from the NLRB attorney).

 Here, the court chose to follow the middle ground offered by the range of case law just cited, and thus, followed the course taken in Seeler v. H.G. Page & Sons, Inc., supra, in which the court accepted a memorandum of law and an oral explanation of the need for injunctive relief from the NLRB attorney. In this case, the court heard testimony from the attorneys at oral argument on January 27, 1995 regarding the appropriateness of injunctive relief and allowed both parties to submit additional briefing within ten days, thus denying Petitioner's request that the motion be decided entirely on the existing administrative record.

 In response to this directive, both Petitioner and Respondents submitted additional briefing, and the court now examines this information, along with all other documents previously submitted, in reaching a decision on this motion.

 C. Merits of the Motion

 1. Delay in Bringing Charges

 Respondents assert that the Petitioner should be precluded from obtaining 10(j) relief because of its delay in instituting these proceedings. Respondents note that the alleged unfair labor practices occurred in mid-August 1994, that the NLRB did not proceed to complaint until November 14, 1994, and two additional months passed before the Regional Director brought the application for preliminary injunctive relief. Thus, they argue that it is obvious that any detrimental effect on the Union can be remedied by the final decision of the Board. In other words, since the Petitioner waited nearly six months to seek the injunction, it could not be truly necessary. "However, the doctrine of laches requires more than a mere showing of delay. That is, it requires a period of inexcusable delay followed by a change in circumstances which would make it inequitable to grant the relief requested." ...

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