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Blyer v. One Stop Kosher Supermarket

June 29, 2010

ALVIN BLYER, REGIONAL DIRECTOR OF REGION 29 OF THE NATIONAL LABOR RELATIONS BOARD, FOR AND ON BEHALF OF THE NATIONAL LABOR RELATIONS BOARD,
v.
ONE STOP KOSHER SUPERMARKET, INC., RESPONDENT.



The opinion of the court was delivered by: Block, Senior District Judge

MEMORANDUM AND ORDER

Alvin Blyer, as Regional Director of Region 29 of the National Labor Relations Board ("NLRB"), petitions, pursuant to 29 U.S.C. § 160(j), for interim relief pending the NLRB's adjudication of an unfair labor practices complaint against One Stop Kosher Supermarket, Inc. ("One Stop"). Specifically, the Regional Director seeks an order requiring One Stop to bargain with Local 338, Retail, Wholesale and Department Store Union, United Food and Commercial Workers ("the Union"), and to provide the Union with information relevant to the bargaining process. For the following reasons, the petition is granted.

I.

The underlying facts are straightforward and undisputed. On May 27, 2009, the Union and David Ganz ("Ganz"), One Stop's labor consultant, executed an agreement whereby One Stop would recognize the Union as its employees' designated collective-bargaining representative.*fn1 The Union informally requested bargaining throughout the summer of 2009. On September 11, 2009, it formalized its request in writing and, in addition, asked One Stop to turn over certain information relevant to the bargaining process. Receiving no response, the Union filed a charge with the NLRB on October 20, 2009.

On January 26, 2010, the NLRB issued a complaint and referred the matter to an administrative law judge ("ALJ"), who held an evidentiary hearing on March 23 and 24, 2010. In the administrative proceeding, One Stop took the position that the recognition agreement was not binding because (1) Ganz was not authorized to execute it on One Stop's behalf, (2) it was a "sham" agreement, never intended to be put into effect, and (3) the Union did not verify that it had the support of a majority of One Stop's employees.

On April 30, 2010, the Regional Director filed the present petition for temporary relief. On May 7th, the ALJ issued a decision finding that the recognition agreement was binding, and recommending that the NLRB order One Stop to bargain with the Union and to provide it with the requested information. To date, the NLRB has taken no action on the ALJ's recommendation.*fn2

II.

Judicial review of NLRB matters is generally vested in the circuit courts, see 29 U.S.C. § 160(f); however, a district court has limited jurisdiction to grant "appropriate temporary relief" "as it deems just and proper." Id. § 160(j). The Second Circuit has adopted a two-part test for determining whether such relief is appropriate:

First, the [district] 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 v. Inn Credible Caterers, Ltd., 247 F.3d 360, 364-65 (2d Cir. 2001).

Although "general equitable criteria apply to grants of injunctive relief under section 10(j)," Kaynard v. Mego Corp., 633 F.2d 1026, 1033 (2d Cir. 1980) (citing McLeod v. General Elec. Co., 366 F.2d 847 (2d Cir. 1966), vacated as moot, 385 U.S. 533 (1967)), the test for § 160(j) relief differs in important respects from the standard formulation for a preliminary injunction.*fn3 Most obviously, "reasonable cause to believe that unfair labor practices have been committed" is a more forgiving standard than "likelihood of success on the merits." Less obviously, § 160(j) does not impose a more stringent burden for obtaining a mandatory (as opposed to prohibitory) injunction. Cf. Tom Doherty Assocs. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995) ("A mandatory injunction . . . is said to alter the status quo by commanding some positive act. . . . [A] mandatory injunction should issue only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief." (citations and internal quotation marks omitted)). Indeed, the relief requested here -- an order requiring an employer to bargain with a union pending a final determination by the NLRB that it is required to do so -- is clearly mandatory in nature, but is frequently granted without any alteration to the usual § 160(j) standards. See, e.g., Inn Credible Caterers, 247 F.3d at 364.

Nevertheless, "[i]t is black-letter law that the issuance of an injunction is an extraordinary remedy," and § 160(j) "in no way changed the extraordinary nature of the injunctive remedy." McLeod, 366 F.2d at 849. Following this precept, the Second Circuit has urged district courts "to give serious consideration to the insertion of appropriate time limits in [§ 160(j)] injunctions." Mego Corp., 633 F.2d at 1035. Such caution is necessary for two reasons. First, "the issuance of a [§ 160(j)] injunction diminishes whatever incentives for speed the General Counsel and the charging union might otherwise have had, since a considerable portion of the desired relief has already been obtained." Id. Second, it ensures that the district court is not overstepping its limited authority to provide only temporary relief. See id. ("Moreover, in the interval between the grant of an injunction and final adjudication by the Board, the rights of the parties will have been determined by a court rather than by the expert agency established by Congress.").

III.

Thus, the Court must undertake a three-part inquiry: (A) Is there reasonable cause to believe that One Stop's refusal to bargain with the Union constitutes an unfair labor practice? (B) If so, is an interim order requiring bargaining "just and proper"? (C) If so, what limits on such an order, if any, are necessary to ...


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