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DUNBAR EX REL. NLRB v. THE PARK ASSOC.

September 8, 1998

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.
THE PARK ASSOCIATES, INC., d/b/a HILL PARK HEALTH CARE CENTER, Respondent.



The opinion of the court was delivered by: SCULLIN

[EDITOR'S NOTE: THE ORIGINAL SOURCE CONTAINED ILLEGIBLE WORDS AND/OR MISSING TEXT.]

 MEMORANDUM-DECISION AND ORDER

 Introduction

 The Regional Director of the National Labor Relations Board ("NLRB" or "Board") filed this action alleging that Respondent, Park Associates, Inc., violated Section 8(a)(1) and Section 8(a)(5) of the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C. §§ 158(a)(1), (5), when it failed to recognize and bargain with the Union, and by interfering, restraining or coercing Park Associates' employees from exercising their rights pursuant to Section 7, 29 U.S.C. § 157, of the Act. The Regional Director of the NLRB now seeks a preliminary injunction pursuant to Section 10(j) of the NLRA, 29 U.S.C. § 160(j), pending the resolution of unfair labor practice charges currently before the Board.

 Background

 This case concerns the operation of a nursing home in Syracuse, New York, formerly known as Hill Haven Nursing Center ("Hill Haven"). On June 21, 1994, Local 200A, Service Employees International Union, AFL-CIO ("Union") was certified by the NLRB as the collective bargaining representative of a unit of employees employed by Hill Haven. *fn1" On March 1, 1995, Hill Haven and the Union reached a collective bargaining agreement ("CBA"), which was to remain in effect until February 28, 1998.

 On August 1, 1997, Hill Haven was sold to the Respondent who renamed it the "Hill Park Health Care Center." On that same day, the Union formally demanded that Respondent recognize and bargain with the Union. *fn2"

 On August 14, 1997, one of Respondent's employees filed a union decertification petition with the NLRB. This petition was signed by 51 of the 93 bargaining unit employees, or approximately 54%. *fn3" As a result of the decertification petition, the NLRB held a decertification election on October 2, 1997. The election ballots have since been impounded by the NLRB pending the resolution of the unfair labor practice charges currently before the Board.

 Discussion

 Section 10(j) of the NLRA authorizes federal district courts to grant preliminary injunctions pending the outcome of unfair labor practice proceedings before the Board. See 29 U.S.C. § 160(j). *fn4" Such relief should be granted where the Court finds that: (1) there is reasonable cause to believe that Respondent has violated the NLRA; and (2) injunctive relief is just and proper. *fn5" See Kaynard v. MMIC, Inc., 734 F.2d 950, 953 (2d Cir. 1984).

 (A) Reasonable Cause to Believe NLRA Violated

 In deciding the first question, the Court's role is not to determine whether an unfair labor practice actually occurred, but whether "there is reasonable cause to believe that an NLRB decision finding an unfair labor practice will be enforced by the Court of Appeals." Kaynard v. Mego Corp., 633 F.2d 1026, 1033 (2d Cir. 1980). Questions of fact must be construed in favor of the Regional Director. See Seeler v. Trading Port, Inc., 517 F.2d 33, 37 (2d Cir. 1975); Ahearn v. House of the Good Samaritan, 884 F. Supp. 654, 659 (N.D.N.Y. 1995). In doing so, the Court must accept the legal position of the Regional Director unless it is convinced that she is legally wrong. See Ahearn, 884 F. Supp. at 659. As this Court recently stated: "a district court should decline to grant relief only if convinced that the NLRB's legal or factual theories are flawed." Dunbar v. Colony Liquor and Wine Distributors, 15 F. Supp. 2d 223, 1998 U.S. Dist. LEXIS 11753, *21, 98- CV-0034, 1998 WL 437406, at *7 (N.D.N.Y. July 30, 1998) (quoting Hoffman v. Polycast Tech. Div. of Uniroyal Tech., 79 F.3d 331, 333 (2d. Cir. 1996)).

 As stated, the Regional Director asserts that the Respondent violated Section 8(a)(1) by interfering with employees rights under Section 7 of the Act and also violated Section 8(a)(5) of the Act by not recognizing and bargaining with the Union beginning on August 1, 1997.

 Section 7 provides, in relevant part, that:

 
Employees shall have the right to self organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be ...

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