NLRB Wins Reversal of Section 10(j) Ruling; Trial Court Denied Bargaining Order Remedy

Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...

By Lawrence E. Dubé

Oct. 14 — The U.S. Court of Appeals for the Second Circuit Oct. 14 directed a trial court to revise or explain its denial of a National Labor Relations Board request for an interim bargaining order against a trucking company that engaged in serious unfair labor practices before an election on union representation.

The U.S. District Court for the Northern District of New York found reasonable cause to believe that Hogan Transports Inc. illegally fired one employee and made threats and promises to others in order to dissuade employees from supporting an International Brotherhood of Teamsters local. The trial court enjoined the company from further violating the National Labor Relations Act, but said the NLRB's request for an interim bargaining order remedy “goes too far.”

Judges Rosemary S. Pooler, Reena Raggi, and Peter W. Hall wrote in a summary order that there was an “apparent disconnect” between the trial court's findings and its conclusion that an interim bargaining order was unnecessary. They said the trial court may “feel free” to stand by its denial of the NLRB request, but it would have to provide “further explanation” for such a ruling.

Charges Filed Over Trucking Firm's Conduct

In June 2013, Local 294 obtained authorization cards from 18 employees in a driver unit of 29 workers at Hogan's West Coxsackie, N.Y., distribution center. The union demanded recognition by Hogan and filed an NLRB election petition. However, before an election could be held, the union alleged Hogan fired one employee because of his union activity and made threats and promises to employees to dissuade them from supporting the union.

The NLRB's general counsel commenced administrative proceedings before an administrative law judge, but the agency also petitioned the federal district court for a preliminary injunction under Section 10(j) of the act.

The NLRB sought court orders for Hogan to reinstate the fired employee and to refrain from committing unfair labor practices, but also alleged that Hogan's conduct made a fair election impracticable, and warranted an interim order under NLRB v. Gissel Packing Co., 395 U.S. 575, 71 LRRM 2481 (1969), to require Hogan to recognize and bargain with the union.

Trial Court Denied Interim Bargaining Order

The trial court found reasonable cause to believe the employer had violated the NLRA and it acknowledged that a bargaining order was “possible” under Gissel.

However, in a November 2013 order it said the extraordinary remedy was not required for a “just and proper” injunction.

The NLRB appealed the partial denial of injunctive relief to the Second Circuit in January. In February, an NLRB administrative law judge sustained allegations against Hogan and found that a Gissel bargaining order was appropriate; Hogan appealed the ALJ's ruling to the board, which is still considering the case.

Second Circuit Remands for Explanation

The appeals court said that where a union has secured a showing of majority support through signed authorization cards, employer unfair labor practices that make a fair election virtually impossible should be remedied by granting a bargaining order under Section 10(j).

The Second Circuit said “the district court's analysis leaves unanswered the question of why an interim bargaining order is inappropriate here.”

Remanding the case, the Second Circuit said if the district court believes a bargaining order is not just and proper, it should “explain, beyond simply stating that an interim bargaining order ‘goes too far,' why such relief is warranted or unwarranted in light of the serious violations it found, and the apparent disconnect between these violations and the other interim relief afforded.”

NLRB attorneys represented the board. Littler Mendelson, PC, represented Hogan Transports, Inc.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the unpublished summary order is available at http://www.bloomberglaw.com/public/document/No_1486CV_2d_Cir_Oct_14_2014_Court_Opinion.