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DUNBAR EX REL. N.L.R.B. v. CARRIER CORP.

February 5, 1999

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.
CARRIER CORPORATION, RESPONDENT.



The opinion of the court was delivered by: Mordue, District Judge.

  MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Petitioner Sandra Dunbar, Regional Director of the Third Region of the National Labor Relations Board ("Board"), petitions under section 10(j) of the National Labor Relations Act ("Act"), 29 U.S.C. § 160(j), for an injunction enjoining respondent from refusing to bargain in good faith with Sheet Metal Workers International Association, Local No. 527 ("union") and from taking any action in furtherance of its decision to relocate work from its TR-1 facility in Syracuse, New York to Huntersville, North Carolina, without first bargaining to a good-faith impasse or agreement with the union over the proposed relocation decision and its effects upon unit employees.

This court denied petitioner's application for a temporary restraining order on January 11, 1999.

On January 19, 1999 this Court granted leave to the union to submit a brief in support of the petition as amicus curiae.

The Court heard oral argument on the petition on February 2, 1999. An order admitting Michael Israel to appear pro hac vice on behalf of the petitioner was granted from the bench at oral argument.

BACKGROUND

I. The Charge

On May 1, 1998 the union filed a "Charge Against Employer" against respondent claiming that respondent "has failed and refused to bargain in good faith with the charging party over the decision to contract out bargaining unit work and the decision to relocate bargaining unit work, from building TR-1." Petitioner subsequently determined that respondent's alleged conduct relative to contracting out bargaining unit work did not constitute an unfair labor practice.

II. Complaint

On December 7, 1998 the petitioner filed a complaint and notice of hearing alleging that since March 1, 1998 respondent "has insisted, as a condition of agreeing not to relocate certain Unit work performed at its TR-1 facility in Syracuse, New York, that the Union agree to the provisions of an addendum to the parties' collective-bargaining agreement *** providing for separate terms and conditions of employment for certain Unit employees in Respondent's TR-1 facility and effectively removing those employees from the Unit." Petitioner further alleges that the relocation of unit work is a mandatory subject for purposes of collective bargaining, that the addendum is not a mandatory subject for purposes of collective bargaining, and that on May 11, 1998, respondent bargained to impasse. The complaint avers that on the same date, respondent decided to relocate the work performed by certain unit employees in the TR-1 facility to a new facility located in Huntersville, North Carolina, notwithstanding that it had failed to reach a bona fide impasse in bargaining about the relocation decision. The complaint further states that beginning on or about October 11, 1998, respondent began to implement its decision to relocate the work performed by certain unit employees in the TR-1 facility "by, but not limited to, acquiring real property and a building in North Carolina, as well as making future plans to complete its implementation of its relocation decision by August 15, 1999." Petitioner concludes that by the alleged conduct, respondent has been failing and refusing to bargain collectively with the exclusive collective-bargaining representative of its employees, in violation of Section 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1), (5).

The complaint seeks an injunction ordering respondent to "cease and desist from relocating Unit work from its TR-1 facility located in Syracuse, New York, and to restore all Unit work which it has already removed, or will remove in the future, back to its TR-1 facility located in Syracuse, New York as it existed on May 11, 1998." The complaint further seeks an order requiring respondent to provide certain documents on request.

III. Petition

The petition sets forth the same allegations as are contained in the complaint. It states that petitioner has reasonable cause to believe that respondent has been failing and refusing to bargain collectively and in good faith with the exclusive collective-bargaining representative of its employees in violation of section 8(a)(1) and (5) of the Act and that the unfair labor practices affect commerce within the meaning of section 2(6) and (7) of the Act, 29 U.S.C. § 152(6), (7). It further states that it may be fairly anticipated that, unless enjoined, respondent will continue to engage in such conduct with the result that employees will continue to be deprived of their fundamental right to be represented for purposes of collective bargaining as provided for in the Act.

Petitioner seeks an order enjoining respondent from failing or refusing to bargain in good faith with the union regarding its decision to relocate work from the TR-1 facility in Syracuse to Huntersville, North Carolina, including restricting bargaining to, and insisting to impasse upon, the adoption of respondent's proposal to alter the scope of the existing collective-bargaining unit. It further seeks an order enjoining respondent from taking any action including construction or preparation of, or procurement or installation of equipment for, its facility in Huntersville, North Carolina, or removing or relocating any fixtures, machinery, equipment, inventory, raw materials, or work/production orders, or laying off or terminating any unit employees at its TR-1 facility on its Syracuse, New York campus, in furtherance of its decision to relocate work to Huntersville, North Carolina without first bargaining to a good-faith impasse or agreement with the union over the proposed relocation decision and its effects upon unit employees. Petitioner requests that the Court issue an affirmative order directing respondent to bargain in good faith with the union concerning their wages, hours and other terms and conditions of employment, including the decision to relocate, and the effects of such decision upon unit employees, to withdraw from bargaining its current proposals that would alter the scope of the parties' established collective-bargaining unit in Syracuse, New York, and to post copies of the District Court's opinion and order at the facilities where notices to employees are customarily posted.

APPLICABLE LAW

Section 10(j) of National Labor Relations Act, 29 U.S.C. § 160(j), provides that upon issuance of a complaint charging that a person has engaged in or is engaging in an unfair labor practice, the Board has the power to petition a District Court for appropriate temporary relief or restraining order.

In considering such a petition, the Court is required to determine whether there is reasonable cause to believe that an unfair labor practice has been committed and, if so, whether the requested relief is just and proper. Kaynard v. Mego Corp., 633 F.2d 1026, 1033 (2d Cir. 1980). With respect to whether there is reasonable cause to believe that an unfair labor practice has been committed, petitioner "is not required to show that an unfair labor practice occurred or that the precedents governing the case are in perfect harmony, but only that there is `reasonable cause to believe that a Board decision finding an unfair labor practice will be enforced by a Court of Appeals.'" Id. at 1033, quoting McLeod v. Business Machine and Office Appliance Mechanics Conference Board, 300 F.2d 237, 242, n. 17 (2d Cir. 1962). The reasonable cause requirement is satisfied where the Board has come forward with evidence "sufficient to spell out a likelihood of violation." Danielson v. Joint Board of Coat, Suit and Allied Garment Workers' Union, 494 F.2d 1230, 1243 (2d Cir. 1974). In reviewing the facts, the court need not resolve conflicting evidence if facts exist which could support the Board's theory. The Board's version of the facts "should be given the benefit of the doubt." Seeler v. The Trading Port, 517 F.2d 33, 37 (2d Cir. 1975). Regarding the law, unless the court is convinced that the legal position of the Board is wrong, a finding of reasonable cause must ensue. Kaynard at 1033.

Injunctive relief under section 10(j) is "just and proper" where serious and pervasive unfair labor practices threaten to render the board's process totally ineffective by precluding a meaningful final remedy or where interim relief is the only effective means to preserve or restore the status quo as it existed before the onset of the violations. Kaynard at 1034; Seeler at 38. In reviewing an application for injunctive relief the court must consider general equitable criteria such as whether irreparable injury may result in the absence of an injunction, Kaynard at 1033, and whether a balancing of the hardships supports an injunction. Ahearn v. House of the Good Samaritan, 884 F. Supp. 654, 661 (N.D.N.Y. 1995).

REASONABLE CAUSE

At all material times respondent has been engaged in producing air conditioning products in Syracuse, New York.*fn1 At all material times, the union has been the designated exclusive collective-bargaining representative of certain employees at respondent's four Syracuse, New York plants (known as TR-1, TR-2, TR-3 and TR-20) for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment.*fn2 The union has been recognized by respondent as the unit representative. The current collective-bargaining agreement is in effect from November 3, 1997 until November 5, 2000. One of the covered plants, known as TR-1, produces ...


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