Paulsen v. All American School Bus Corp.
967 F. Supp. 2d 630
E.D.N.Y2013Background
- Petitioner filed a 10(j) petition seeking a preliminary injunction to require bargaining and rescission of unilateral changes after respondents’ March 22, 2013 best and final offer.
- Respondents are 28 DOE bus contractors employing about 8,800 drivers/escorts represented by Local 1181; bargaining historically occurred with MFN and EPP terms.
- The MFN clause first appeared in the 2009-2012 CBA and sunset with that contract; it was discussed but not invoked.
- The DOE decided to eliminate Employee Protection Provisions (EPPs) in bids starting 2013, weakening Local 1181’s leverage and seniority protections.
- Twelve bargaining sessions from Oct 2012–Mar 2013 produced limited progress; Local 1181 proposed retaining MFN but not the clause; respondents declared impasse and implemented their best and final offer on Mar 22, 2013.
- Employees experienced ongoing financial and emotional harm after the changes, fueling the need for interim relief to preserve bargaining and prevent irreparable harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NLRB regional director has authority to file 10(j) petition despite quorum issues | Paulsen asserts authority; other court decisions support delegation to GC | Respondents contend lack of quorum invalidates 10(j) action | Yes; court adopts authority to file §10(j) petition. |
| Whether there is reasonable cause to believe unlawful bargaining conduct occurred | No good-faith impasse; progress on issues shows not at rope’s end | MFN clause was a critical issue and caused impasse | There is reasonable cause to believe a ULP occurred. |
| Whether injunctive relief is just and proper to preserve bargaining and prevent irreparable harm | Interim relief needed to protect union rights and prevent ongoing harm | Money damages suffice; relief may bankrupt respondents | Yes; injunctive relief is just and proper and entails rescission of unilateral changes. |
| Whether unilateral changes violated Sections 8(a)(1) and 8(a)(5) of the NLRA | Unilateral changes without impasse violate bargaining obligations | Impasses and negotiations allow unilateral action | Yes; unilateral changes violated the NLRA and justified 10(j) relief. |
Key Cases Cited
- Inn Credible Caterers, Ltd. v. NLRB, 247 F.3d 360 (2d Cir.2001) (complexity of 10(j) relief and need to prevent irreparable harm)
- Silverman v. Major League Baseball Player Relations Comm., Inc., 67 F.3d 1054 (2d Cir.1995) (deference to NLRB determinations in 10(j) proceedings)
- Katz v. U.S., 369 U.S. 736 (U.S. 1962) (unilateral employer action without bargaining impedes negotiations)
- NLRB v. WPIX, Inc., 906 F.2d 898 (2d Cir.1990) (unilateral action undermines bargaining legitimacy)