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BLYER v. STATEN ISLAND CABLE LLC

May 7, 2003

ALVIN BLYER, REGIONAL DIRECTOR OF REGION 29 OF THE NATIONAL LABOR RELATIONS BOARD, FOR AND ON BEHALF OF THE NATIONAL LABOR RELATIONS BOARD, PETITIONER, AGAINST STATEN ISLAND CABLE LLC D/B/A/ TIME WARNER CABLE OF NEW YORK CITY AND LOCAL UNION NO. 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, RESPONDENTS


The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge

OPINION AND ORDER

Petitioner, Alvin Blyer, Regional Director of Region 29 of the National Labor Relations Board ("Board"), brings this application pursuant to Section 10(1) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160 (1), seeking to preliminarily enjoin respondents from engaging in unfair labor practices violative of Section 8(e) of the NLRA, 29 U.S.C. § 158 (e). Specifically, petitioner claims that Section 7 of the collective bargaining agreement (the "CBA") between respondents constitutes an improper "union signatory" agreement, that is, an agreement which permits an employer to transfer work to another employer only if it has a contract with the union. Here, the CRA requires respondent Staten Island Cable LLC d/b/a/ Time Warner Cable of New York City ("Time Warner") to cease doing business with D.M.&M. Cable Services, Inc. d/b/a Advantage Cable ("Advantage"), because Advantage no longer has a contract with Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO ("Local 3"). Respondents, Time Warner and Local 3, oppose petitioner's request, arguing that: (1) the Board improperly found that Section 7 of the CBA is facially volative of Section 8(e) without first weighing the evidence as to the purpose of Section 7; (2) that Section 7 of the CBA does not violate Section 8(e); and (3) that, in any event, the court is prohibited from enjoining Local 7 from seeking arbitration if Time Warner were to subcontract work to Advantage.

As a preliminary matter, contrary to respondents' contention, the regional director is not required to make full factual findings that there has been a violation of Section 8(e) prior to seeking an injunction. Rather, Section 10(1) of the NLRA provides that, once a charge of an 8(e) violation has been brought to the Board, the regional director conducts a preliminary investigation to determine if there is reasonable cause to believe such charge is true. If reasonable cause is found, the regional director is authorized to petition the district court for injunctive relief pending "final adjudication" by the Board. 29 U.S.C. § 160 (1).

Standard of Review

In a proceeding under Section 10(1) for injunctive relief, the court is not called upon to decide whether an unfair labor practice has been committed. The ultimate determination of the merits is reserved exclusively to the Board, subject to review by the Court of Appeals pursuant to Sections 10(e) and (f) of the NLRA, 29 U.S.C. § 160 (e) and (f). With respect to factual issues, the court's inquiry is limited to whether the Board has reasonable cause to believe that the respondents have violated the NLRA as charged. It is sufficient that the evidence, with the reasonable inferences to be drawn therefrom, supports a conclusion that there is reasonable cause to believe that a violation has occurred. Douds v. Milk Drivers & Dairy Employees Union, Local 584, 248 F.2d 534, 537-8 (2d Cir. 1957). With respect to legal issues, "the district court should be hospitable to the views of the General Counsel, however novel," Danielson v. Joint Board of Coat, Suit and Allied Garment Workers Union, 494 F.2d 1230, 1245 (2d Cir. 1974), for "the Board, rather than the district courts, remains the primary fact finder and primary interpreter of the statutory scheme." McLeod v. National Maritime Union, 457 F.2d 490, 494 (2d Cir. 1972) (quotations omitted). If the court finds that the regional director has reasonable cause to believe that a violation of Section 8(e) exists, then, under Section 10(1), it must grant such relief as it finds "just and proper."

Facts

The respondents have expressly agreed that there are no disputed issues of fact pertinent to the application for an injunction. The evidence set forth by the Board establishes the following:

Time Warner is engaged in the business of installing and operating cable television systems on Staten Island. Local 3 represents certain Time Warner employees pursuant to the CBA, which is effective between April 1, 2001 and February 28, 2005. Section 7 of the CBA states, in pertinent part, that:

(a) The Company [Time Warner] shall have the right to subcontract the work referred to in Section 6 of the Agreement with companies having agreements with the Union [Local 3] similar to this agreement and providing such subcontracting is not done for the purpose of laying off employees.
(b) For two years from the effective date of this Agreement, the company shall have the right, in addition to utilizing its in-house employees as specified in this Agreement or, Local 3 contractors as specified in Subsection (a) above, to subcontract Cable Modem Work to companies which do not have agreements with the Union or which have agreements which are not similar to this Agreement, provided however, that there are no more than 120 such contractor employees performing such Work at any one time. Following that two-year period, the provisions of Subsection (a) above will apply to the contracting out of such Cable Modem Work.
Time Warner subcontracts a portion of its cable installation work to several contractors, one of whom, until April 1, 2003, was Advantage. Local 3 represented the employees of Advantage who performed cable installation work from sometime in 1992 or 1993 until March 31, 2003, when their collective bargaining agreement expired.

During the fall of 2002, representatives of Time Warner notified Advantage that Time Warner could not renew Advantage's contract to perform cable installation services unless Advantage had a current collective bargaining agreement with Local 3. On January 8, 2003, Local 3 notified Advantage that it would not be renewing its contract with Advantage. Advantage attempted to initiate negotiations with Local 3 but received no response. In late March of 2003, Time Warner informed Advantage that, if Advantage did not have a collective bargaining agreement with Local 3, Time Warner could not continue to contract with Advantage after March 31, 2003.

On April 4, 2003, Local 3 and Time Warner discussed the possibility of Time Warner continuing to contract with Advantage, effectively ceasing to give effect to the challenged portions of Section 7 of the CBA. Local 3 indicated that it would initiate a grievance and arbitration against Time Warner to enforce the terms of Section 7. Advantage then filed a charge with the NLRB claiming that the respondents, by giving effect to Section 7 of the CBA, are engaging in unfair labor practices within the meaning of Section 8(e) of the NLRA.

Section 8(e)

Congress enacted Section 8(e), the so-called "hot cargo" section, as part of the 1959 Landrum-Griffin Amendments to the NLRA, in an attempt to eliminate agreements in which a union and an employer agree to refrain from doing business with another employer. Section 8(e) provides, in part, that:

It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or cease doing business with any other person, and any other contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void
As described by the Supreme Court in National Woodwork Manufacturers Assn. v. NLRB, 386 U.S. 612 (1967), the purpose of Section 8(e) is to prohibit agreements that concern a secondary, as opposed to a primary or contracting employer. However, it does not prohibit all union and employer agreements that may have the secondary effect of a cessation of business with other employers. For example, clauses that contain language that could be viewed as violating Section 8(e) are not prohibited if they have the primary objective of preserving work performed by the contracting employer's employees. See NLRB v. Longshoremen ILA, 447 U.S. 490 (1980); International Association of Bridge ...

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