OPINION GRANTING TEMPORARY INJUNCTIVE RELIEF PURSUANT TO 29U.S.C.§160(J)
Celeste J. Mattina ("Petitioner" or "Mattina"), Regional Director for Region 2 of the National Labor Relations Board (the "Board" or the "NLRB") brings this action seeking temporary injunctive relief, pursuant to Section 10(j) of the National Labor Relations Act ("NLRA" or the "Act"), 29 U.S.C. § 160(j). Petitioner seeks an injunction pending the final disposition of proceedings before the Board against Ardsley Bus Corp. ("Respondent" or "Ardsley") in which the General Counsel of the Board ("General Counsel" or "G.C.") has alleged that Respondent has engaged in, and is engaging in, unfair labor practices in violation of Sections 8(a)(1) and (5) and 8(d) of the NLRA. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 160(j). The Court has reviewed thoroughly the parties' submissions and heard oral argument on April 13, 2010. For the following reasons, the Court has determined the matter on the basis of the administrative record and grants the Petition.
Respondent provides school bus services to Westchester County school districts. (Petition, Ex. A, Part 4 ("Part 4") at 121:24-126:6.) Respondent has approximately 250 employees. (Id. at 430:9-11.) The Transport Workers Union of Greater New York, Local 100, AFL-CIO (the "Union") represents more than 200 of Ardsley's employees. (Pet'r Br. at 7; Resp. at 15; Tr. of April 13, 2010, oral argument at 11:13-15.) The Company and the Union first entered into a collective bargaining agreement in September 2000; that agreement expired on June 30, 2002. (Petition, Ex. A, Part 2 ("Part 2"), G.C. Ex. 53*fn1 (2006 Memorandum of Agreement ("MOA") between the Union and Respondent extending and attaching the original CBA) (the "CBA").) The agreement was modified and extend twice: for the periods July 1, 2002, through June 30, 2006, and July 1, 2006, through June 30, 2009, pursuant to MOAs. (See id.; Part 2, G.C. Ex. 66 (2002 MOA).) The 2000 CBA and the MOAs provide for the picking of bus routes by employee seniority. Information about the bus routes is required to be posted. (Part 2, G.C. Exs. 53, 66.) The CBA also provides procedures for addressing "Grievances, Disputes and Arbitration." (CBA, Section 14.)
In September 2007 the Union replaced its shop steward and filed several grievances relating to the Company's alleged breaches of the CBA, including failure to pay wages and other compensation, refusal to apply the seniority provisions, and improper maintenance of buses. (Part 4 at 130:15-140:18; Petition, Ex. A, Part 5 ("Part 5") at 558:7-559:3; 560:13-24.) The Union undertook a "publicity" campaign, which included safety inspections of buses and the display of an inflatable rat at the bus facility. (Part 4 at 131:12-22, 143:12-144:16.) As much of the evidence introduced during the underlying administrative proceeding showed, tensions between Respondent and the Union consistently mounted until contract renewal negotiations broke down in June 2009. In May and June 2008, Respondent refused to provide the Union with information regarding the summer bus routes and canceled meetings to discuss the issue. (Part 5 at 593:13-612:24.) In July and August 2008, the Union filed grievances concerning summer route pay and the failure to hold an employee "pick" (i.e., bus route selection). (Petition, Ex. A, Part 1 ("Part 1"), G.C. Exs. 16, 48.) A pick was held in August 2008, and was attended by Union representatives. The Union later discovered, however, that some routes had been excluded from the pick in violation of the CBA. (Part 1, G.C. Ex. 25.)
The Union filed "numerous" grievances in September and October 2008. (Pet'r Br. at 10; Part 1, G.C. Exs. 31-34, 38-40, 43.) In the following months, the company refused to participate in mandatory "step two" meetings to address the many pending grievances (Part 2, G.C. Exs. 73-74; Part 5 at 636:7-13), although it did agree six months later to arbitrate some grievances.
In December 2008, the Company allegedly "deal[t] directly" with the Company's mechanics in soliciting statements regarding their receipt of certain compensation and with other employees in drafting and procuring signatures on statements indicating that the employees acceptance of the summer route pick had not been coerced. (Part 4 at 328:8-332:23; Petition, Ex. A, Part 6 ("Part 6") at 1129:19-1136:19; 1342:3-21; 1054:22-1056:12.) In May 2009 the Company failed to respond to the Union's information request, made in preparation for negotiation of the next MOA. (Part 2, G.C. Ex. 75; Part 5 at 644:15-646:4.)
After several delays by the Company, it began negotiating with the Union in June 2009 but soon walked out of negotiations because a Union representative who was presenting the Union's position was reading from notes that he refused to provide to the company. (Part 5 at 522:6-525:22.) Around that time, but before the June 30, 2009, expiration of the CBA, a petition to decertify the union was presented to the NLRB by several Ardsley employees. (Petition, Ex. A, Part 3 ("Part 3"), R. Ex. 6A (letter dated June 16, 2009, from employees addressed to Tiktin and Gillison regarding their attempt to deliver the petition on June 15, 2009, to the N.L.R.B.), R. Ex. 6B (decertification petition).) The employees who had attempted to deliver the decertification petition were told by NLRB personnel that they could not make such a petition in the final 60 days of a contract term. (Part 3, R. Ex. 6A.) In August 2009, the Company held a bus route "pick" that it refused to allow the Union to attend, and instituted changes in employees' terms and conditions of employment regarding pay rates, assignment of charter routes, holidays and leave, and hours of work. (Part 6 at 1190:9-1202:7; Part 1, G.C. Ex. 19 ("Ardsley Bus Company Employee Hourly Wages Company Policies [and] Rules September 1, 2009 - August 31, 2010"); 1332:9-1333:3 see also Pet'r Br. at 28-31 (discussing the changes in terms and conditions of employment reflected in G.C. Ex. 19).)
The Union filed four charges with the NLRB in 2008 and 2009, the period during which the relationship between the Union and Respondent deteriorated. The General Counsel of the NLRB, by the Regional Director, filed complaints with respect to all four charges. The complaints were eventually consolidated and were the subject of a hearing before an Administrative Law Judge ("ALJ") in November 2009. The ALJ issued a decision on March 2, 2010, and errata on March 15, 2010. (Petition, Exs. D ("March 2, 2010, Decision"), E ("March 15, 2010, errata").) The ALJ found that Respondent had committed a number of unfair labor practices and that it had unlawfully withdrawn recognition from the Union in June 2009 and thus unlawfully made subsequent unilateral changes to employees' terms and conditions of employment. (March 2, 2010, Decision at 41-42.) The ALJ characterized the unfair labor practices allegations as falling into three broad categories: (1) "allegations involving Cesar Uchofen, a driver who was named by the Union as an employee union representative" (March 2, 2010, Decision at 4); (2) "allegations concerning seniority clauses and practices," namely allegations that Respondent unilaterally modified, and thus breached, the seniority provisions of the CBA and that it refused to respond to the Union's request for information regarding bus route assignments necessary for the Union's monitoring and enforcement of the CBA and for meaningful bargaining (id. at 4-5); and (3) "allegations concerning the negotiations in June 2009 for a new contract," including allegations that Respondent refused to bargain in good faith, instead deliberately running out the clock on the then existing contract in order to then unlawfully withdraw recognition from the Union and unilaterally change terms and conditions of employment (id. at 5).
The NLRB's Motion to Try the Petition on the Basis of the Administrative Record
The General Counsel moves to try the Petition for a temporary injunction on the basis of the record before the ALJ. (Docket entry no. 4.) Respondent does not dispute that the Court has discretion to try the Petition on the basis of the underlying administrative record. See Silverman v. J.R.L. Food Corp., 196 F.3d 334, 337 (2d Cir. 1999) (noting that the district court had granted the Board's motion to decide the Petition on the basis of the record of the administrative proceeding). Rather, Respondent argues that an evidentiary hearing should be held because the ALJ, in noting during the hearing that Respondent would prevail on certain issues if it succeeded in making appropriate showings, "blind sided" Respondent into believing that it had actually prevailed on those issues, causing Respondent to abstain from introducing relevant evidence. However, the evidence that Respondent now seeks to introduce relates primarily to Respondent's belief that the Regional Director holds a bias in favor of unions that colored the NLRB's conduct of its investigation into the charges that resulted in the administrative proceeding at issue. Respondent's evidence, which apparently consists of hearsay statements that NLRB personnel told some Ardsley employees that "unions are good" (Resp. at 11), is irrelevant to the question of whether the temporary relief sought in the instant action is warranted. Respondent also refers to the Union's alleged bullying and anti-Semitic conduct. Those accusations, discussed briefly below, are without merit and are irrelevant to the Court's inquiry as to whether reasonable cause exists to believe that Respondent engaged in unfair labor practices. Finally, Respondent argues that the ALJ prevented it from introducing evidence of the Union's loss of majority support. Respondent represents that its evidence shows that Respondent did not participate in, or solicit, employees' efforts to have the Union decertified. Such evidence is immaterial because, as is explained below, an employer may not rely on employee disaffection from a union that it has caused. The ALJ found, and the record indicates, that Respondent's unfair labor practices caused any disaffection that Respondent might prove. Respondent's evidentiary proffers are thus insufficient to demonstrate the necessity of additional evidentiary proceedings on the instant Petition. Petitioner's motion to try the Petition on the basis of the record before the ALJ is granted.
The NLRB's Petition for a Temporary Injunction
The NLRB may seek an injunction against unfair labor practices once it has filed a complaint pursuant to 29 U.S.C. § 160(b). 29 U.S.C. § 160(j). "In this Circuit, in order to issue a § 10(j) injunction, the district court must apply a two-prong test. First, the court must find reasonable cause to believe that unfair labor practices have been committed. Second, the court must find that the requested relief is just and proper." Hoffman ex rel. N.L.R.B. v. Inn Credible Caterers, Ltd., 247 F.3d 360, 365 (2d Cir. 2001).
"[W]hen considering § 10(j) petitions, [courts] give considerable deference to the NLRB Regional Director. As [the Second Circuit] ha[s] noted, '[w]ith respect to issues of fact, the Regional Director should be given the benefit of the doubt . . . and on questions of law, the Board's view should be sustained unless the court is convinced that it is wrong.'" Id. (alterations in original) (quoting Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047, 1051 (2d Cir. 1980)). See also Mattina ex rel. N.L.R.B. v. Kingsbridge Heights Rehabilitation and Care Center, 329 Fed. App'x 319, 321 (2d Cir. 2009) ("In determining whether reasonable cause exists, a district court should show '[a]ppropriate deference . . . to the judgment of the NLRB, and . . . should decline to grant relief only if convinced that the NLRB's legal or factual theories are fatally flawed.'" (alterations in original) (quoting Silverman v. Major League Baseball Player Relations Comm., Inc., 67 F.3d 1054, 1059 (2d Cir. 1995))); id. at 322 ("the 'reasonable cause' prong contemplates that a Section 10(j) injunction will routinely be issued despite the existence of unresolved issues before the Board"); J.R.L. Food Corp., 196 F.3d at 335 (noting that "[a] court considering whether to grant temporary equitable relief pursuant to § 160(j) should give '[a]ppropriate deference' to the contentions of the NLRB and should decline to grant relief only if the NLRB's legal or factual premises are 'fatally flawed'" and that "[a]n Administrative Law Judge's factual findings are part of the record and cannot be ignored" (citations omitted)); Kaynard v. Mego Corp., 633 F.2d 1026, 1031 (2d Cir. 1980) ("[T]he Regional Director's version of the facts should be sustained if within the range of rationality, . . . inferences from the facts should be drawn in favor of the charging party, and . . . even on issues of law, 'the district court should be ...