United States District Court, S.D. New York
PAUL J. MURPHY, Acting Regional Director of the Third Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
ALLWAYS EAST TRANSPORTATION, INC., Respondent
For Paul J. Murphy, Acting Regional Director of the Third Region of the National Labor Relations Board, on behalf of National Labor Relations Board, Petitioner: John Joseph Grunert, LEAD ATTORNEY, National Labor Relations Board, Albany, NY.
For Allways East Transportation, Inc., Respondent: Richard I Milman, Ira David Wincott, Jonathan Sturm, Milman Labuda Law Group, PLLC, Lake Success, NY.
OPINION & ORDER
NELSON S. ROMÁN, United States District Judge.
Paul J. Murphy (the " Regional Director" or " Petitioner"), Acting Regional Director for the Third Region of the National Labor Relations Board (the " Board") petitions this Court for temporary injunctive relief pursuant to § 10(j) of the National Labor Relations Act (the " Act"). 29 U.S.C. § 160(j). For the following reasons, the Regional Director's petition is DENIED.
In February 2014, Respondent Allways East Transportation, Inc. contracted with Dutchess County, New York to transport preschool and special education students formerly transported by nonparty Durham School Services (" Durham"). (Pet. at 4, ECF No. 1.) Durham is a national bus company whose bus drivers and matrons are represented by the International Brotherhood of Teamsters, Local 445 (the " Union"). (Pet'r's Mem. at 5, ECF No. 3.) Respondent is a small bus company specializing in preschool and special education transportation, which has never had union employees. (Pet. Ex. C. at 1-2, ECF No. 1.)
To handle the new routes, Respondent began hiring bus drivers and matrons, many of whom previously worked for Durham. (Pet'r's Mem. at 6, ECF No. 3.) Respondent also opened a new terminal in Wappingers Falls, New York for the Dutchess County routes. (Id. at 7.) By April 22, 2014, the date on which Respondent began servicing the Dutchess County routes, Respondent had hired roughly 60 former Durham employees and assigned them to the new facility in Wappingers Falls. (Id. at 6.) As of that date, former Durham employees made up a majority of the drivers and matrons at Wappingers Falls. (Id.) Excluding Wappingers Falls, Respondent also employs approximately 200 additional drivers and matrons based out of Durham's main facility in Yonkers, New York. (Id. at 7.)
No card check or Board election has been conducted since Respondent contracted with Dutchess County. On March 10, 2014, the Union called and emailed Marlaina Koller, Respondent's Vice President, to schedule a meeting. (Id. at 6.) On April 16, 2014, the Union sent a letter to Ms. Koller formally requesting that Respondent recognize and collectively bargain with the Union as the representative of drivers and matrons who service the Dutchess County routes. (Id.) Then on May 14, 2014, a Union representative visited Respondent's Wappingers Falls facility to speak with Ms. Koller, but she was not at the facility. (Pet. Ex. F at 2-3, ECF No. 1.) To date, Respondent has not recognized or bargained with the Union.
The Union filed charges with the NLRB on May 15 and August 1, 2014 for unfair labor practices. (Pet. at 2, ECF No. 1.) A hearing on the consolidated charges is scheduled for December 15, 2014 before an NLRB Administrative Law Judge. (Letter from Ira D. Wincott to Judge Romá n at 1, Oct. 30, 2014, ECF No. 10.) The Regional Director now petitions under § 10(j) of the Act for temporary injunctive relief, pending the Board's final decision, directing Respondent to recognize and bargain with the Union, to post the Court's order at Respondent's Wappingers Falls facility, and to file an affidavit setting forth the manner of Respondent's compliance with the Court's order. ( See Pet. at 6-8, ECF No. 1.)
STANDARD OF REVIEW
In assessing a § 10(j) petition, a district court applies a two-prong test: (1) the court must find " reasonable cause" to believe that unfair labor practices have been committed, and (2) 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, 364-65 (2d Cir. 2001).
The reasonable cause standard is considerably deferential to the Regional Director. " With 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." Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047, 1051 (2d Cir. 1980) (internal quotation omitted); see also Kaynard v. Mego Corp., 633 F.2d 1026, 1031 (2d Cir. 1980) (holding that the court should sustain the Regional Director's factual assertions if they are " within the range of rationality"). A petitioner must, notwithstanding, come forward with " evidence sufficient to spell out a likelihood of [a] violation." Mattina v. Chinatown Carting ...