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DUNBAR EX REL. NLRB v. LANDIS PLASTICS

September 3, 1997

SANDRA DUNBAR, Regional Director of the Third Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
LANDIS PLASTICS, INC., Respondent.



The opinion of the court was delivered by: POOLER

MEMORANDUM-DECISION AND ORDER

 INTRODUCTION

 BACKGROUND

 I. Procedural Background

 The procedural history of this relatively young case is already complex. On November 7, 1996, the NLRB filed its Section 10(j) petition and order to show cause for injunctive relief against Landis. *fn1" Dkt. No. 1. Landis responded initially with an order to show cause of its own to expedite discovery and to compel discovery in this matter. Dkt. No. 7. The NLRB then cross-moved for a discovery protective order. Dkt. No. 17. I heard extensive oral argument on the motions on November 29, 1996. Dkt. No. 23. At that time, I directed the parties to submit evidentiary affidavits regarding the injunction request. However, although the NLRB submitted evidentiary affidavits and Landis made a motion to strike certain affidavits, *fn2" further court action became unnecessary because the parties reached a settlement on December 16, 1996. On December 20, 1996, I granted the NLRB's request for a stay in this action pending "compliance by Respondent with the terms of the aforementioned settlement agreement." Dkt. No. 61. The request I signed as an order stated that "once compliance with the settlement agreement has been completed, Petitioner will notify the Court and withdraw the petition." Id.

 The legal cease fire in federal court broke down on August 7, 1997, when the NLRB filed its latest order to show cause requesting permission to amend and resume. Dkt. Nos. 63-65. Because I have received extensive briefing on this motion and am fully familiar with the facts of this case given my involvement in the litigation during November 1996, I deny Landis' request to further delay this matter by pursuing discovery and conducting an evidentiary hearing on the limited motion to amend and resume. As discussed more fully below, there is ample support for the NLRB's request to amend its petition and resume these proceedings.

 II. Factual Background

 Landis is a plastics manufacturing plant located in Solvay, New York. In mid-April 1996, local representatives of the United Steelworkers of America, AFL-CIO, union ("United Steelworkers") began a drive to organize the plant. Throughout the organizing campaign, incidents between union supporters and management took place, one of which allegedly culminated in an employee's discharge. The incidents formed the basis of an NLRB investigation that began in late spring. The NLRB issued a Second Amended Consolidated Complaint and Notice of Hearing on October 25, 1996, in which it alleged that Landis engaged in unfair labor practices throughout the union organizing drive. In response to additional unfair labor practice charges by the union, the NLRB issued Third, Fourth and Fifth amended consolidated complaints, with the latest action taking place on July 22, 1997. A hearing on the merits of the NLRB's charges took place before an administrative law judge on August 4 through August 8, 1997, and was scheduled to resume on August 25 through September 5, 1997. NLRB Mem., Dkt. No. 69, at 5.

 On this latest motion, I have received submissions from the NLRB, United Steelworkers, and Landis. *fn3" Dkt. Nos. 67-70. A great deal of these papers concerns the merits of the underlying Section 10(j) petition rather than the narrow issues before me. At the time of the settlement in December 1996, I had before me the underlying request for a Section 10(j) injunction as well as several discovery-related requests. In their latest submissions, the parties reargued their positions with respect to discovery and the injunction. In the interests of expediency, I will decide the outstanding discovery issues in this order as well as the motion to amend and resume proceedings.

 DISCUSSION

 I. Amendment of petition and resumption of proceedings

 Landis argues that I must deny the NLRB's motion to amend the petition and resume the Section 10(j) proceedings because (1) Landis complied with the settlement agreement; (2) the NLRB does not have the power to revoke the settlement agreement; (3) the NLRB waited too long in making its motion; and (4) the NLRB did not show that justice requires an amendment and exhibited bad faith in failing to produce affidavits. In the alternative, Landis argues that it is entitled to discovery and an evidentiary hearing on the above issues. None of the company's arguments has merit.

 The parties agree that federal law creates a liberal standard for permitting amendment of pleadings. Fed. R Civ. P. 15(a). Whether to permit an amendment is within the court's discretion, and I may not deny leave to amend absent a justifying reason. Vandewalker v. Quandt's Food Serv. Distrib., Inc., 934 F. Supp. 42, 47 (N.D.N.Y. 1996). Justifying reasons include undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, undue prejudice to the opposing party, failure to cure deficiencies by previous amendments and futility. Id. Landis argues that undue delay is present here because the NLRB waited six months before seeking to amend its petition to add new unfair labor practice charges and request additional injunctive relief. I disagree. In litigation of any complexity, six months is not a long interval. Based on the submissions, I find that the parties were actively working toward investigation and resolution of their disputes within the context of the NLRB's administrative proceedings. See, e.g., Donner Aff., Dkt. No. ...


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