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James G. Paulsen, Regional Director & of Region 29 of the v. 833 Central Owners Corp.

December 4, 2012


The opinion of the court was delivered by: Jack B.WEINSTEIN, Senior United States District Judge:



James Paulsen, regional director of Region 29 of the National Labor Relations Board ("Board"), seeks a preliminary injunction pursuant to section 10(j) of the National Labor Relations Act (the "Act"), 29 U.S.C. § 160(j).

An Administrative Law Judge ("ALJ"), after a hearing, found on September 14, 2012 that respondent 833 Central Owners Corporation threatened retaliation, and then discharged its employee, Ezra Shikarchy, because of his union activities and in violation of his rights under Section 7 of the Act. See Mem. of P. & A. in Supp. of Pet. for Prelim. Inj. Under Sec. 10(j) of the Nat'l Labor Relations Bd. ("Pet. P. & A."), CM/ECF No. 3, at 3. The ALJ ordered respondent, within fourteen days of his decision, to cease and desist from interfering with the rights of its employees to engage in protected union activities and to reinstate Shikarchy to his former position or a substantially equivalent position. Id. Respondent filed an appeal with the Board on October 12, 2012. Id.

Pending a final ruling by the Board on respondent's appeal, petitioner seeks to freeze the status quo as it existed before the initiation of any alleged unfair labor practices by respondent. The injunctive relief requested by the petitioner is for an order (1) halting respondent from taking actions adverse to union activity protected by the NLRA, and (2) reinstating terminated employee Shikarchy to his former job, posting copies of the order in locations for respondent's employees to see the order, and requiring respondent to file with the court an affidavit affirming its compliance with the order. See Pet. P. & A. at 25; see also Order to Show Cause Hr'g Tr. ("Show Cause Tr.") 84, Nov. 30, 2012 ("MR. BOKDE [for petitioner]: Specifically, we only want you to reinstate Mr. Shikarchy and for respondent to cease threatening and suspending and terminating employees for participating in collective bargaining.").

For the reasons stated below, petitioner's request for an injunction pursuant to section 10(j) is granted. Entry of the injunction shall be stayed for ten days to allow respondent to seek a further stay in the Court of Appeals for the Second Circuit and to provide for an orderly reinstatement of Shikarchy to his former position.

II.Facts and Procedural History

The following facts are drawn from the record of the administrative hearing before ALJ William Nelson Cates on May 7 and 8, 2012 and testimony proffered at a hearing on petitioner's motion before the court on November 30, 2012.

Beginning in February 2010, Shikarchy had been employed as a "super" engaged in assisting tenants at respondent's premises, 833 Central Avenue, Far Rockaway, New York (the "Premises"). See Pet. P. & A. at 4. Shikarchy, while employed by respondent, was provided an apartment on the Premises. Tr. of Admin. Hr'g before ALJ Cates ("Admin. Tr.") 126, May 7-8, 2012, CM/ECF No. 13-1 & 13-2.

Since 2003, Local 621 of the United Workers of America (the "Union"), has represented a unit of seven full-time and regular part-time doormen, porters, handymen, and supers employed by respondent. Pet. P. & A. at 2, 4; Show Cause Tr. 35. The Union and respondent are currently involved in negotiations for a new collective bargaining agreement. Show Cause Tr. 65-66. Their most recent agreement, which had a term of one year, expired in November 2010. Id.

Shikarchy was hired as the super for the Premises in February 2010. Admin. Tr. 125. After he began supporting unionization of respondent's employees and their demands for increased wages in the summer of 2011, he was told by respondent to stop. He refused. Admin. Hr'g 130; see also, e.g., Pet. P. & A., Ex. 1, Decision of ALJ in Case No. 29-CA-70910, Sept. 4, 2012 ("ALJ Decision"), CM/ECF No. 3, at 13 ("Shikarchy credibly testified . . . that Friedman on three or four occasions told him either in person or on the telephone he better drop his grievance against Friedman or . . . he would be fired."). The Union filed a grievance on Shikarchy's behalf in August 2011 related to respondent's alleged harassment of Shikarchy. Pet. P. & A. at 5-6.

Respondent suspended Shikarchy on October 27, 2011 and fired him on December 13, 2011. Id. at 8, 10. It hired a replacement super in early 2012, nearly two months after firing Shikarchy. Show Cause Tr. 71-72. Like Shikarchy, the replacement super lives in an apartment on the Premises provided by respondent. Id. at 72-73. He lives there with his wife. Id. at 74.

In connection with Shikarchy's suspension and termination, the Union filed an unfair labor practice charge against respondent on January 15, 2012 and an amended charge on January 30, 2012, alleging violations of the Act. Pet. P. & A. at 2.

Following an investigation, the Board issued a complaint and notice of hearing on February 21, 2012. Id. A hearing was held before ALJ Cates in May 2012. Id. at 3. On September 14, 2012 the ALJ issued a decision resolving credibility against respondent and ...

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