will make the ultimate determination on the merits of the unlawful discharge claims, and I decline to intrude upon his role. Nonetheless, I find reasonable cause to believe that Landis terminated Saumier and Sullivan for illegitimate reasons rather than for harassment. I rely upon two relevant factors. First, the NLRB clearly has established an anti-union animus among managers at Landis by virtue of the many unfair labor practices that are the subject of this petition. As noted above, respondent did little to controvert the NLRB's allegations, which found support in many employee affidavits.
Second, I find that prior to the union organizing effort, Landis exhibited a pattern of past acquiescence with respect to workplace harassment. For example, Richard Bentley stated that co-workers referred to him as "Buckwheat" and "nigger" and were not punished. Bentley Aff. of 5/14/97, Dkt. No. 77, PP 3-7, Bentley Aff. of 4/21/97, Dkt. No. 77, PP 2-4. Respondent alluded to an investigation of this complaint but provided no documentation in support of it. McClelland Aff. of 9/19/97, Dkt. No. 120, P 5(d). Landis workers reported many incidents of sexual harassment that went unpunished at the plant. See Andrew Aff. of 2/12/97, Dkt. No. 78, P 5; Brown Aff. of 4/2/97, Dkt. No. 79, PP 2-6; DeFuria Aff. of 2/13/97, Dkt. No. 81, PP 7-9; Ho Aff. of 6/2/97, Dkt. No. 86, PP 2-4; Baker Aff. of 2/13/97, Dkt. No. 89, PP 2-5. Ironically, Landis fired Bentley, a pro-union employee, for sexual harassment, but the company does not claim to have discharged any of the workers or supervisors who are subjects of the above complaints. McClelland Aff. of 9/19/97, Dkt. No. 120, P 5(d); see also Russell Aff. of 9/18/97, Dkt. No. 119, P 6. Assistant Landis human resources manager Russell submitted the conclusory claim that the company handles sexual harassment complaints "in a consistent manner, according to the Company's policy," and she attached a copy of the non-harassment policy.
Russell Aff. of 9/18/97, Dkt. No. 119, P 6. However, this conclusory denial fails to address the concerns raised in the very specific employee affidavits. On the reasonable cause prong of my analysis, I resolve all doubts in favor of the NLRB, and I conclude that Landis tolerated workplace harassment prior to the union organizing drive. The evidence in the record belies Landis' assertion that it took action against Sullivan and Saumier pursuant to a neutral policy.
I also find that reinstatement of Saumier and Sullivan is just and proper interim relief because "both employees . . . were active and open union supporters," and "their discharges therefore risked a serious adverse impact on employee interest in unionization." Palby Lingerie, 625 F.2d at 1053. See also Roth v. American Property Rights Ass'n Fuel Oil Buyers Group, Inc., 795 F. Supp. 577, 600 (E.D.N.Y. 1992) (holding that "where the Regional Director has established reasonable cause to believe that employees were discriminatorily discharged in violation of § 8(a)(3) of the Act, interim reinstatement and cease and desist orders have been consistently upheld as 'just and proper'"); Aguayo v. Tomco Carburetor Co., 853 F.2d 744, 749 (9th Cir. 1988) (holding that "it was an abuse of discretion for the [district] court to conclude that reinstatement of employees discharged for union organizing activities was not just and proper").
Landis argues strenuously that interim reinstatement is neither just nor proper because of the egregious conduct Sullivan and Saumier are alleged to have committed. I disagree. The cases upon which Landis relies are inapposite. In a decision regarding enforcement of an NLRB order, a procedural posture vastly different from the preliminary stage of this Section 10(j) petition, the Second Circuit remanded an order reinstating two suspected thieves as security guards because the record did not resolve whether the employees engaged in the thefts. KBI Sec. Serv., Inc. v. NLRB, 91 F.3d 291, 296 (2d Cir. 1996). The court declined to decide whether "reinstatement of a thief to a position with a security company" is a permissible remedy. Id. In another Second Circuit case, the court held that enforcing an arbitrator's award reinstating an employee the arbitrator had found guilty of workplace sexual harassment was against public policy. Newsday, Inc. v. Long Island Typographical Union, No. 915, 915 F.2d 840, 845 (2d Cir. 1990). Newsday does not prohibit the reinstatement of either Saumier or Sullivan because in that case a finder of fact had decided the merits of the sexual harassment charge, the employee was not also the subject of discrimination based on his union activity, and the employee had received a previous warning about the serious consequences of his harassing behavior. Id. at 843, 845.
In addition, Landis devoted considerable effort to showing that the discharges had no chilling effect among remaining Landis employees and the union organizing effort. The NRLB submitted affidavit evidence to the contrary. I do not resolve this factual dispute. As noted above, the issue of "chill" is only one portion of my analysis, and the factors of injury to Saumier and Sullivan, restoration of the status quo, protection of the NLRB's ability to issue a final remedy, and the public interest in a fair bargaining process all support interim reinstatement. Given the uncontroverted evidence of prior instances of harassment that Landis tolerated, it is disingenuous for the company now to argue that the presence of Sullivan and Saumier in the workplace effects an injury to public policy and the morale and working conditions of fellow employees. Finally, I do not consider Landis' argument that Saumier's interim reinstatement would cause the company injury because it misapprehends the correct legal standard, which considers irreparable injury to the person subjected to an unfair labor practice. See Russell Aff. of 9/18/97, Dkt. No. 119, P 8. I grant the NLRB's request for interim reinstatement of both Sullivan and Saumier.
For the foregoing reasons, I DENY Landis' motion for reconsideration of my September 3 memorandum-decision and order. I DENY Landis' motion to strike the appearance of counsel for the United Steelworkers and direct that counsel appear in these proceedings as amicus curiae, although not as a party. I DENY the NLRB's request for an injunction ordering interim promotions for Landis employees Kenneth Houck and Em Ho. Finally, I GRANT the following injunctive relief to the NLRB pursuant to Section 10(j) of the NLRA:
1. Respondent, its officers, agents, representatives, servants, employees, attorneys, and all persons acting in concert or participation with them (collectively, "respondent"), are enjoined and restrained pending final disposition by the NLRB of the matters involved in the amended petition, from interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the NLRA; from discriminating in regard to hire or tenure or terms or conditions of employment of its employees, thereby discouraging membership in a labor organization, in violation of Section 8(a)(1) and (3) of the NLRA; and from discriminating against its employees because they filed charges or gave testimony under the NLRA. This order incorporates the specific prohibitions listed in the amended petition, Dkt. No. 72, at 20-23, P 1(a) through (a)(a).
2. Respondent is ordered to offer interim reinstatement to employees Kathy Saumier and Clara Sullivan to their former positions and working conditions, displacing, if necessary, any workers hired or reassigned to replace them, or, if their former positions no longer exist, to substantially equivalent positions.
3. Respondent is ordered to, on an interim basis, rescind and not use in any future disciplinary action, any personnel notices of the allegedly unlawful discipline and warnings given to employees which are alleged in the amended petition as unlawful and not rely upon the notices or warnings in any future discipline.
4. Respondent is ordered to post copies of this opinion and order at its facility where its notices to employees customarily are posted, and the posting shall be maintained during the duration of the NLRB's administrative proceedings, free from all obstructions and defacements, and agents of the NLRB shall be granted reasonable access to the respondent's facility to monitor compliance with this posting requirement.
5. Respondent is ordered to, within twenty days of the filing of this order, file with the district court, with a copy submitted to petitioner, a sworn affidavit from a responsible official of respondent, setting forth with specificity the manner in which respondent has complied with the terms of this order.
IT IS SO ORDERED.
Dated: March 4, 1998
Syracuse, New York
ROSEMARY S. POOLER
United States District Judge