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Paulsen ex rel. NLRB v. Remington Lodging & Hospitality, LLC

United States Court of Appeals, Second Circuit

December 12, 2014

JAMES G. PAULSEN, Regional Director of Region 29 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellant,
v.
REMINGTON LODGING & HOSPITALITY, LLC, Respondent-Appellee. REMINGTON LODGING & HOSPITALITY, LLC, Petitioner-Appellee,
v.
JAMES G. PAULSEN, Regional Director of Region 29 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Respondent-Appellant.

Argued April 23, 2014

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Eastern District of New York. No. 13 CV 2539(JFB) -- Joseph F. Bianco, Judge.

Appeal from orders of the United States District Court for the Eastern District of New York (Joseph F. Bianco, J.) granting in part and denying in part Petitioner's petition for a preliminary injunction under § 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j), and denying Respondent's motion to dismiss. AFFIRMED in part, REVERSED in part, and REMANDED.

ELIZABETH A. HEANY, Attorney (Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel, Barry J. Kearny, Associate General Counsel, Jayme L. Sophir, Deputy Associate General Counsel, Elinor L. Merberg, Assistant General Counsel, Laura T. Vazquez, Deputy Assistant General Counsel, on the brief), National Labor Relations Board, Washington, D.C., for Petitioner-Appellant.

KARL M. TERRELL, Stokes Wagner Hunt Maretz & Terrell, Atlanta, GA, for Respondent-Appellee.

Before: WINTER, PARKER, and HALL, Circuit Judges.

OPINION

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Barrington D. Parker, Circuit Judge :

This opinion resolves three appeals arising from a union organizing campaign at a Hyatt Hotel operated by Remington Lodging and Hospitality, LCC (" Remington" ). James G. Paulsen, a Regional Director for the National Labor Relations Board (" NLRB" ), appeals from a May 23, 2013 order of the United States District Court for the Eastern District of New York (Bianco, J.) (" May order" ). The order denied his petition under § 10(j) of the National Labor Relations Act (" NLRA" or " the Act" ) for an injunction prohibiting Remington from engaging in unfair labor practices and ordering the immediate reinstatement of certain discharged employees. See 29 U.S.C. § 160(j). He also appeals from an August 14, 2013 order that denied his motion for an injunction ordering the immediate reinstatement of the discharged employees not withstanding the fact that the court concluded that Remington had engaged in unfair labor practices (" August order" ). The district court concluded in both instances that an injunction was not " just and proper," primarily because Remington had already offered, or would soon offer, reinstatement to the discharged employees. See Joint App'x at 91-94; [2] Paulsen ex rel. N.L.R.B. v. Remington Lodging & Hospitality, LLC, No. 13 Civ. 2539 (JFB) (WDW), 2013 WL 4119006, at *9-13 (E.D.N.Y. Aug. 14, 2013).

Separately, Remington appeals from the district court's August order insofar as it denied Remington's motion to dismiss Paulson's petition on the ground that the NLRB had been improperly constituted under the Recess Appointments Clause, see N.L.R.B. v. Noel Canning, 134 S.Ct. 2550, 2575, 189 L.Ed.2d 538 (2014), and enjoined Remington from engaging in unfair labor practices. For the reasons discussed below, we AFFIRM in part and REVERSE in part the orders of the district court.

BACKGROUND

The following facts are drawn from the findings of the administrative law judge and of the district court. We are bound by those findings of fact unless they are clearly erroneous. Hoffman ex rel. N.L.R.B. v. Inn Credible Caterers, Ltd., 247 F.3d 360, 364 (2d Cir. 2001). In April 2012, Local 947, United Service Workers Union, International Union of Journeymen and Allied Trades (the " Union" ) began communicating with employees at a Hyatt Hotel regarding unionization. The employees of the housekeeping department were the principal focus of the campaign. Remington's management opposed the campaign and, in response, began interrogating employees about union activity, spreading misinformation regarding the union, and threatening to dismiss employees who joined. Before Remington's operation of the hotel, housekeeping services had been subcontracted to Housekeeping Staffing Services (" HSS" ). When Remington arrived, it dismissed HSS. In August 2012, Remington again subcontracted the work done by its housekeeping staff to

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HSS, which, in turn, hired most of Remington's housekeeping employees. At the same time as Remington's former employees were working for HSS, Remington was hiring and training a separate, new housekeeping staff. In October 2012, after the training was complete, Remington cancelled the subcontract, fired its old employees and replaced them with the newly trained workers. Remington contends that it took these actions in response to persistently low ...


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