The opinion of the court was delivered by: POOLER
INTRODUCTION AND BACKGROUND
Petitioner Sandra Dunbar, regional director of the third region of the National Labor Relations Board ("NLRB"), initiated proceedings in this action against respondent Landis Plastics, Inc. ("Landis") pursuant to Section 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j). In this memorandum-decision and order, I will dispose of all issues presently remaining in the case. Those issues are (1) Landis' motion for reconsideration of my memorandum-decision and order dated September 3, 1997, Dkt. No. 96; (2) Landis' motion to strike the appearance of attorneys representing the United Steelworkers of America, Dkt. No. 127; and (3) the merits of the underlying petition for injunctive relief, Dkt. No. 72.
Because of the complex procedural posture of this litigation, I will discuss relevant facts in each portion of my analysis. I note generally, however, that Landis is a plastics manufacturing plant employing approximately 250 people and 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. Hearings on the merits of the NLRB's charges took place before an administrative law judge ("ALJ") in August and September 1997. The parties are scheduled to submit legal arguments to the ALJ in March 1998, and the judge's decision then will be forthcoming. Letter of Beth Mattimore of 2/3/98, Dkt. No. 158.
I. Motion for reconsideration
By a memorandum-decision and order filed on September 3, 1997, I granted the NLRB's motion to resume its Section 10(j) proceedings, which had been discontinued during settlement discussions, allowed the NLRB to amend its petition, denied several Landis discovery requests, and set forth the legal standard by which I would analyze the merits of the petition for injunctive relief. Dkt. No. 71 (the "September 3 Order"). On September 17, 1997, Landis filed a motion for reconsideration of my decision and sought discovery, an evidentiary hearing, and additional briefing on the merits. Dkt. No. 96. Notably, Landis did not object to the Section 10(j) legal standard, which necessarily affects the scope of relevant discovery.
See September 3 Order at 8. Both the NLRB and United Steelworkers opposed the reconsideration request and pointed out its procedural infirmities.
I choose, however, to consider the request for reconsideration in the interest of providing Landis with the fullest opportunity to present its views.
Landis argues first that it is entitled to additional discovery and an evidentiary hearing to determine whether reinstating former Landis employees Kathy Saumier and Clara Sullivan is appropriate injunctive relief. Its request rests on an incomplete statement of the applicable legal standard, because Landis argues that the NLRB must establish reasonable cause to believe that the terminations were unlawful and caused irreparable harm. Dkt. No. 96 at 2. As I noted in my September 3 Order, the reasonable cause prong is extremely deferential to the NLRB and requires that I draw inferences in favor of the labor board. September 3 Order at 9. In addition, I must consider irreparable harm to the the discharged workers, the parties injured by the unfair labor practice, not just to the union as Landis suggests. Id. at 10; see Silverman v. Major League Baseball Player Relations Comm., Inc., 880 F. Supp. 246, 255 (S.D.N.Y. 1995). Irreparable harm is one of several factors I consider to determine whether injunctive relief is just and proper. Id. at 9-10. With that clarification in mind, I turn to Landis' specific reconsideration requests.
The company contends that a decision on affidavit evidence is inappropriate because the affidavits conflict on material facts. In support of its claim, Landis cites a portion of the underlying unfair labor practice hearings before the ALJ, even though those proceedings are incomplete. Dkt. No. 96 at 3. As I stated in my September 3 Order, it is inappropriate for me to rely on the ALJ proceedings because they are ongoing, and affidavit evidence permits me to have a more complete record. September 3 Order at 11-12. I agree that it would be inappropriate for me to resolve disputed factual issues on the basis of affidavit evidence alone.
See Doe v. New York Univ., 666 F.2d 761, 765 (2d Cir. 1981). See also Conveyer & Caster Corp. v. Cruzado, 1994 U.S. Dist. LEXIS 1694, 1994 WL 49694 *2 (W.D.N.Y. 1994). However, as discussed more fully below, the affidavit evidence in the record presents no factual dispute that is material to my decision. Because the court's function in reviewing a Section 10(j) petition is "limited," the need for an evidentiary hearing will vary from case to case. Fuchs v. Hood Indus., Inc., 590 F.2d 395, 397 (1st Cir. 1979). In this case, an evidentiary hearing remains unnecessary.
Although Landis initially moved to strike affidavits of James J. Valenti, Dkt. No. 58, the company now relies on them to support its request for discovery materials relating to employee attendance at union organizing meetings and signed union authorization cards. Dkt. No. 96 at 4. While these materials may be tangentially relevant to demonstrating the chilling effect of alleged unfair labor practices, the issue of "chill" itself is only a small component to the relevant analysis, which also considers harm to injured workers, the public interest, preservation of the status quo, and the ability of the NLRB to issue a final remedy. Because I refuse to decide the merits of the unfair labor practice charges before the ALJ, I continue to find that the discovery Landis requests is over broad.
Finally, Landis makes the incredible assertion that it never has had the opportunity to address the merits of the NLRB's request for injunctive relief and should be permitted to file additional legal memoranda. In addition to the extensive oral argument I heard on the merits on November 29, 1996, I have received the following materials from Landis containing legal arguments: Respondent's Response Memorandum filed 11/20/96, Dkt. No. 15; Respondent's Views (memorandum) filed August 15, 1997, Dkt. No. 67; Respondent's Motion filed 9/17/97, Dkt. No. 96; Letter of Joel H. Kaplan of 9/25/97, Dkt. No. 132; and Letter of Richard B. Lapp of 10/2/97, Dkt. No. 142. Landis argues that it requires an additional opportunity to address the public policy ramifications of reinstating Kathy Saumier because the company alleges that she sexually harassed male co-workers. As discussed more fully below, I decline Landis' invitation to convert this Section 10(j) proceeding into a sexual discrimination lawsuit, just as I decline to decide the merits of the unfair labor practice charges. I have provided Landis with ample opportunity to fill the record with evidence and argument in support of its position, including supplemental letters filed without prior court permission and various surreplies. For the foregoing reasons, I deny Landis' motion to reconsider portions of the September 3 Order.
II. Appearance of union counsel
On November 25, 1996, attorney Mairead E. Connor filed a notice of appearance in this matter on behalf of the United Steelworkers union. Dkt. No. 16. Since that time, the union has participated in this litigation. Nearly a year later, on September 23, 1997, Landis filed a motion to strike the appearance of counsel because the union is not a party and has no intervention rights. Dkt. No. 128. Respondent also argued that Section 10(j) prohibits the union's participation in this ...