773 F.3d 462
2d Cir.2014Background
- Three NLRA § 10(j) appeals arise from a Hyatt hotel union campaign led by Local 947 against Remington Lodging.
- Remington interrogated, incorrect information disseminated, and threatened employees over union activity; Remington replaced housekeeping with HSS workers, then later rehired a new staff after canceling the subcontract.
- Discharged Loiacono for criticizing compensation literature; thirteen others were discharged during the campaign and were later offered reinstatement by Remington.
- NLRB filed unfair-labor-practice charges; Paulsen filed the § 10(j) petition seeking interim relief and immediate reinstatement.
- District court denied the petition in May 2013 and again denied reinstatement in August 2013, citing lack of “just and proper” relief and ongoing offers of reemployment.
- Remington challenged Board authority under the FVRA, arguing lack of proper appointment of the Acting General Counsel, and sought dismissal on jurisdictional grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FVRA challenge and jurisdiction | Paulsen argues FVRA-valid Acting GC authorization; not jurisdictional. | Remington contends Solomon’s FVRA appointment invalidates authorization, undermining standing. | Forfeited; not jurisdictional, and district court’s lack of timely raising does not defeat petition. |
| Injunction for housekeeping staff | § 10(j) injunction justified to protect unionization and prevent irreparable harm. | District court’s delay and offers of reinstatement negate ongoing need for an injunction. | Changed circumstances foreclose just-and-proper injunctive relief at this time; reversal in part due to harm to union rights and delay. |
| Loiacono’s reinstatement | Loiacono’s discharge tied to union activity; merits reinstatement relief. | Loiacono not treated similarly to housekeeping staff; delay acceptable. | District court erred by not ordering Loiacono reinstatement; remanded to require offer of reinstatement or re-employment. |
| Changed-circumstances doctrine | Relief warranted despite past delays to preserve organizational rights. | Delay factors mitigated need for relief given offers and cease-and-desist order. | Court recognizes changed-circumstances but limits relief; injunctive relief not just and proper given post-change conditions. |
Key Cases Cited
- Inn Credible Caterers, Ltd. v. N.L.R.B., 247 F.3d 360 (2d Cir. 2001) (§10(j) injunctive standard and deference to Board findings on reasonable cause)
- Fall River Dyeing & Finishing Corp. v. N.L.R.B., 482 U.S. 27 (U.S. 1987) (successor-employer doctrine and protection of unionization process)
- HealthBridge Mgmt., LLC v. N.L.R.B., 732 F.3d 131 (2d Cir. 2013) (injunctions under §10(j) must protect the unionization process; irreparable harm concept)
- Seeler v. Trading Port, Inc., 517 F.2d 33 (2d Cir. 1975) (time-sensitivity in reinstating employees affects §10(j) relief)
- Pye ex rel. N.L.R.B. v. Excel Case Ready, 238 F.3d 69 (1st Cir. 2001) (time-critical nature of reinstatement in injunctive relief)
- N.L.R.B. v. Electro-Voice, Inc., 83 F.3d 1559 (7th Cir. 1996) (considerations of irreparable harm in §10(j) analysis)
- Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377 (2014) (statutory standing distinctions; not all lack of authority is jurisdictional)