Peter B. Hoffman, Regional Director of Region 34 of the National Labor Relations Board, for and on Behalf of the National Labor Relations Board v. Inn Credible Caterers, Ltd.Peter B. Hoffman, Regional Director of Region 34 of the National Labor Relations Board, for and on Behalf of the National Labor Relations Board v. Inn Credible Caterers, Ltd.
Reversed and remanded.
Laura T. Vazquez, Attorney, National Labor Relations Board, Washington, DC (Leonard R. Page, General Counsel; Mary Joyce Carlson, Deputy General Counsel; Barry J. Kearney, Associate General Counsel; Ellen A. Farrell, Deputy Assoc. General Counsel; Judith I. Katz, Ass‘t General Counsel), for Petitioner-Appellant.
Thomas R. Gibbons, Hartford, CT (Cody Jaffe, Jackson Lewis Schnitzler & Krupman), for Respondent-Appellee.
OAKES, Senior Circuit Judge:
1 The National Labor Relations Board (“Board“) appeals from the denial of its applicаtion for an injunction under
BACKGROUND
2 This action involves a dispute between ICC and the Union over a series of incidents that occurred at the Bear Mountain Inn (the “Inn“). The Inn is a full-service hotel and restaurant with banquet facilities located in Bear Mountain State Park in Rockland County, New York. The Inn is owned by Palisades Interstate Pаrk Commission, but it has been privately managed and operated for over twenty years by Aramark, Inc. (“Aramark“).
3 Aramark‘s contract with the State expired on March 7, 1999. On March 8, 1999, ICC assumed responsibilities for the Inn on a short-term basis and on a regular basis about six weeks thereafter. The Union has represented the Inn‘s employees for 40 years. In 1977, it was certified as the exclusive collective bargaining representative by the Board.
4 From the time ICC began to assume responsibilities for the Inn, it refused to recognize or to bargain with the Union. On March 3, 1999, upon learning of ICC‘s probable takeover, the Union sent a letter to ICC requesting a meeting. Two days later, the Union sent a second letter. ICC did not respond to either letter. On March 8, ICC posted a notice soliciting employment applications directly from workers and stating that “[e]ffective March 8, 1999,” ICC would be handling operations at the Inn. On March 12, ICC met with Union organizers but refused to bargain with them, declaring that “there is no union, there is no need to meet.”
5 At some point during the first week of May, an Inn employee handed the president of ICC a letter purportedly signed by a majority of Inn employees expressing their desire not to be represented by the Union.1 Nothing is known regarding the author of this letter or the circumstances surrounding its creation. The letter states:
6 We the employees of Bear Mountain Inn do not wish at this time to be represented by Local 100 or any other Local Union. We appreciate what you‘ve done for us in the past and we know that you have worked hard for us as well. Thank you.
7 On May 10, 1999, the Union filed a chargе with the Board alleging that ICC committed unfair labor practices. The Regional Director then issued a complaint against ICC for refusing to bargain with the Union under
8 We note at the outsеt that we are bound by the district court‘s findings of fact unless they are clearly erroneous and that we review fully all conclusions of law, including findings of reasonable cause. See Silverman v. J.R.L. Food Corp., 196 F.3d 334, 335-36 (2d Cir. 1999) (citing Kaynard v. Mego Corp., 633 F.2d 1026, 1030 (2d Cir. 1980)). We review the district court‘s determination of whether relief is just and proper for abuse of discretion, see Mego Corp., 633 F.2d at 1030, bearing in mind -- to use Judge Craven‘s words -- that a “judge‘s discretion is not boundless and must be exercised within the applicable rules of law or equity.” Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 193 (4th Cir. 1977), referred to and quoted in Henry J. Friendly, Indiscretion About Disсretion, 31 EMORY L.J. 747, 777 (1982).
9 Prior to 1932, injunctions were commonly used by employers and granted by the courts to prevent union organization. In this context, they came to be perceived as a means of protecting the proprietary interests of the employers. After Congress passed the
10 An employer has a duty under
11 In this Circuit, in order to issue a
12 In the current case, the district court did not conduct a reasonable cause analysis. It reasoned that because the Board failed to satisfy the just and proper prong, it was unnecessary to conduct a reasonable cause analysis. We disagree with the district court‘s analysis of the just and proper prong. We also find that there is reasonable cause in the record to believe that the Board would -- as in fact the ALJ did -- find that ICC violated the Act and that the district court committed reversiblе, clear error by not deferring sufficiently to the Regional Director in light of the record. Cf. Polycast, 79 F.3d at 334 (remanding grant of
I. Reasonable Cause
13 The district court does not need to make a final determination whether the conduct in question constitutes an unfair labor practice; reasonable cause to support such a conclusion is sufficient. See Silverman v. Major League Baseball Player Relations Comm., Inc., 67 F.3d 1054, 1059 (2d Cir. 1995). In this Circuit, when considering
15 Many of the principles governing the legal successorship inquiry were announced by the Supreme Court in NLRB v. Burns Int‘l Sec. Servs., Inc., 406 U.S. 272 (1972) and in Fall River Dyeing, 482 U.S. 27. A finding of legal successorship is based upon a two-part inquiry. First, there must exist “substantial continuity” between the enterprises of the successor and the predecessor employers. See Fall River Dyeing, 482 U.S. at 43. Second, the successor must have hired a majority of the predecessor‘s employees at the time when the successor‘s workforce had reached а “substantial and representative complement.” See id. at 47. If these two prongs are satisfied, then the successor employer is a legal successor under a duty to bargain with the preexisting union. See id.
A. Substantial Continuity
16 The “substantial continuity” test is based upon a factual inquiry into the totality of circumstances. See Fall River Dyeing, 482 U.S. at 43. In determining whether there is “substantial continuity” between the enterprises such that the successor employer has a legal duty to bargain with the union of the predecessor employer‘s employees, the Board cоnsiders several factors: “whether the business of both employers is essentially the same; whether the employees of the new company are doing the same jobs in the same working conditions under the same supervisors; and whether the new entity has the same production process, produces the same products, and basically has the same body of customers.” Id. The “substantial continuity” inquiry is conducted from the employees‘, rather than from the employer‘s, perspective. See id. As the Fall River Dyeing Court noted, it is “[o]f particular significance... that, from the perspective of the employees, their jobs d[o] not change.” 482 U.S. at 44.
17 Although the district court did not make any factual determinations relating to substantial continuity, the record shows reasonable cause to believe that there was substantial continuity between the respective enterprises of Aramark and ICC. Both employers engaged in the business of handling the catering and the recreational facilities at the Inn. The employees performed essentially the same jobs in essentially the same facilities with the same general public, and the majority of the job classification units remained the same. Moreover, the majority of Aramark‘s employees were hired by ICC to work in their previously assigned units. From their perspective, little changed when ICC assumed operations at the Inn. We therefore find that there is reasonable cause to support the Regional Director‘s finding that substantial continuity was achieved sometime between March 8, when ICC posted a notice announcing its takеover, and mid-April, when ICC obtained a liquor license and opened for regular business.
B. Substantial and Representative Complement
19 The second part of the two-part legal successorship inquiry relates to the composition of ICC‘s workforce. A successor employer who is in substantial continuity with the predecessor employer has a legal obligation to bargain with the predecessor union when it has hired a majority of the predecessor‘s employees. See Fall River Dyeing, 482 U.S. at 47.
20 The critical question in this inquiry relates to the appropriate time at which to make the determination of the presence of a majority in the successor‘s workforce. In Fall River Dyeing, the Court held that such a determination is to be made when the successor has hired a “substantial and representative complement” of its employees. See 482 U.S. at 46-52. See also Banknote Corp. of America, Inc. v. NLRB, 84 F.3d 637, 643 (2d Cir. 1996).
22 The parties disagree over when ICC attained a substantial and representative complement of its workforce so as to calculate the presence of a union majority. Specifically, the disagreement is over the time at which ICC was running at normal or substantially normal operation. ICC contends that it was not running at normal operation until May 16, 1999, when only 29 out of its 79 employees were former Aramark employees. The Regional Director contends that normal operation was reached on April 18, when 29 of the 47 employees were former Aramark employees.
23 We find that the ALJ had reasonable cause to agree with the Regional Director.3 The ALJ fоund that the May 16 employee roster reflected an increase from the normal roster in anticipation of the coming high-season. ICC argued on appeal that prior to May 16 the Inn was operating at lower, off-season levels, and that it didn‘t begin operating for “regular” business until around Memorial Day. What the ALJ perceived to be regular business followed by a high point in the season, ICC interprets as a low point in the season followed by regular business.
24 In the context of seasonal businesses, identifying one “representative” moment when the bargaining duty might attach can be an elusive enterprise. But this is an enterprise best left ultimately to the expertise of the Board. See NLRB v. DeBartelo, 241 F.3d 207, 212 n.9 (2d Cir. 2001). The district court needs only to have reasonable cause to believe that the Board would find that ICC had reached a substantial and representative complement by April 18, not that ICC did in fact reach one by that date. Although we recognize that the ALJ‘s finding might be overturned on ICC‘s appeal to the Board, we believe that it was supported by reasonable cause.
II. Just and Proper
25 The just and proper standard for
26 The Board shall have power, upon issuance of a complaint... charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court... for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.
27
28 The Supreme Court has not yet passed criteria for granting
30 The district court in this case interpreted the just and proper standard to require that the Board must “demonstrate irreparable harm to the employees[,]” and that “in the absence of any evidence that serious and pervasive harm has been visited upon [ICC‘s] employees, an injunction cannot be deemed just and proper.” Hoffman v. Inn Credible Caterers, Ltd., No. 99 Civ. 11584(RCC), 2000 WL 707155 at *2, *3 (S.D.N.Y. May 31, 2000). We believe that this formulation misstates our Court‘s approach to applying the just and proper prong.
31 One of the underlying purposes of
32 We hold that the appropriate test for whether harm is irreparable in the context of
33 In the context of successor employers who can damage employee confidence in preexisting unions by simply failing to recognize them until after they have hired an alternative non-union workforce, there is a pressing need to preserve the status quo while the Board‘s final decision is pending.7 Without such preservation, the Board‘s determination of any violations will be meaningless in the context of a new majority workforce committed to non-unionization.
35 In this Circuit, the appropriate status quo in need of preservation is that which was in existence before the unfair labor practice occurred. As we said in Trading Port, “the status quo which deserves protection under
36 ICC points to the contested May letter in which a majority of Inn employees purportedly expressed a collective desire not to be represented by the Union. The import of this letter turns on the question of when ICC‘s bargaining duty, if any, attached. Specifically, the question is whether the district court had reasonable cause to believe that ICC had a duty to bargain with the Union before the letter was received. If it did, then lack of employee support afterwаrds is no defense to a violation of that duty.
37 As we noted above in Section I, the district court must give considerable deference to the Board or Regional Director when making a determination of reasonable cause. We find here that the district court failed to observe this rule of deference and hold that there was reasonable cause to believe that ICC‘s bargaining duty attached before the May letter was received by ICC‘s president. Accordingly, there was reasonable cause to beliеve that ICC committed an unfair labor practice before the May letter. Under this reasoning, the appropriate status quo to be preserved was in existence prior to ICC‘s receipt of the May letter. In these circumstances, the letter is irrelevant to the inquiry whether
38 Our reasoning leads us to conclude that both prongs of the
CONCLUSION
39 For the reasons set forth above, we reverse thе judgment of the district court and remand for entry of the requested injunction.
OAKES, Senior Circuit Judge