Dunbar v. Colony Liquor and Wine Distributors
| Decision Date | 30 July 1998 |
| Docket Number | No. 98-CV-0034.,98-CV-0034. |
| Citation | 15 F.Supp.2d 223 |
| Parties | Sandra DUNBAR, Regional Director of the Third Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. COLONY LIQUOR AND WINE DISTRIBUTORS, L.L.C., Respondent. |
| Court | U.S. District Court — Northern District of New York |
DeGraff, Foy, Holt-Harris & Kunz, LLP (Glen P. Doherty, of counsel), Albany, NY, for respondent.
This is a petition for injunctive relief brought by Sandra Dunbar ("petitioner"), Regional Director of the Third Region of the National Labor Relations Board ("NLRB" or "the Board"), on behalf of the Board, pursuant to the Labor-Management Relations Act ("LMRA"), 29 U.S.C. § 160(j). Respondent Colony Liquor and Wine Distributors, L.L.C. ("Colony") opposes the petition.
The following facts are drawn from the record of the administrative hearing before Administrative Law Judge Michael A. Marcionese ("ALJ"). Colony is a New York limited liability corporation engaged in the wholesale distribution of liquor and wine. Transcript of Administrative Proceeding (hereinafter "Tr.") at 28-29. Its principal place of business is in Kingston, New York. As of June of 1997, Colony also had offices in Albany, Syracuse, Rochester and Buffalo.
As of June of 1997, Colony had three facilities in the Albany area. One facility, located in Menands, New York, had been an original Colony facility. The other two, in the City of Albany, were acquired through Colony's merger in September of 1996 with a company called Peerless Mohawk. Tr. at 77. After the merger, all three of the Albany facilities (hereinafter "the Albany facility") remained in operation through a portion of 1997. Prior to the merger, employees at both the Colony and Peerless locations in Albany were represented by Local 669, International Brotherhood of Teamsters, AFL-CIO (hereinafter "the Union"). After the merger, the Union, on behalf of the employees at the Albany facility, entered into a collective bargaining agreement ("CBA") with Colony. Id.; GC-91. As of 1996 and throughout 1997, none of Colony's Kingston employees were represented by a union. Tr. at 78.
At least as early as 1997, Colony began exploring the possibility of expanding its Kingston facility. See GC-3. Colony employee and Union Shop Steward Gary Brown testified that in February of 1997, Colony supervisor John Dowdell told him that Colony would probably be leaving the Albany area. Tr. at 328. Specifically, Dowdell indicated that "there was a good possibility that the business would be going to Kingston and [the Albany employees] wouldn't necessarily be going with it." Id. at 328. Dowdell asked that Brown keep the information confidential. Id. Throughout the first half of 1997, however, Colony management was denying to its employees that the Albany facility would be relocated to Kingston. Tr. at 398-400; 550-52. Colony began construction of the expanded Kingston facility in April of 1997. GC-32; Tr. at 91.
In March or April of 1997, Irving Wood, principal executive officer of the Union, became aware of rumors circulating among the shop stewards that Colony was relocating its Albany facility to Kingston. Tr. at 110. Sometime in May of 1997, Wood contacted Donald Jost, Colony's Director of Operations, and asked "what was going on" with the Kingston expansion. Tr. at 112. Jost told Wood that no decision had been made on what positions would be transferred to Kingston, and left open the possibility that at least the Menands site would remain in operation. Id. at 112-13. On May 19, 1997, Wood sent a letter to Colony's President, James Andretta III, asking (1) whether Colony had plans to move the Albany facility to another location; (2) if so, when the move was planned and to what location; and (3) what the reasons for the relocation were. GC-10. Wood did not receive a response to the letter. Tr. at 116. He sent a follow-up letter on June 2, 1997 requesting the same information, and again received no response from Colony. GC-11.
On June 11 and 13, 1997, Colony sent notices to the Albany employees, pursuant to the Worker Adjustment and Retraining Notification Act ("WARN"), that Colony intended to cease operations at the Albany facility as of August 15, 1997, at which time their employment would be permanently terminated. GC-12, 13. The notices also indicated that no "bumping rights" currently existed. GC-13. No notification was given to the Union at that time, but Wood was given copies of the WARN Act notices by one of the stewards. Tr. at 119-20. After reviewing the notices, Colony employee and Union Shop Steward Robert F. Haight asked Dowdell (1) for clarification of the "bumping rights" reference; (2) whether the Union had been notified; and (3) if the Albany facility employees covered by the CBA (hereinafter the "bargaining unit employees") would be employed in Kingston. Tr. at 401. Dowdell did not respond.
Meantime, Wood had still not received a response to his letters of May 19 and June 2. On June 16, 1997, the Union submitted various grievances in an attempt to keep the Albany facility open or to require Colony to transfer the bargaining unit employees to Kingston. On June 17, 1997, Wood wrote Andretta requesting that Colony meet with the Union to discuss the decision to cease operations at the Albany facility. GC-14. Specifically, the Union wanted to discuss: (1) the impact of the closing on the bargaining unit employees; (2) the application of the Albany CBA to Colony operations in other facilities; and (3) Colony's obligation to continue employment of the bargaining unit employees at another location. The same day, the Union filed its original charge with the Board. See GC-1a. The charge alleged that since May 19, 1997, Colony had refused to bargain in good faith with the Union by, inter alia, refusing to furnish information on the relocation. Id.
On June 20, 1997, the Union submitted an intention to arbitrate the grievances with the New York State Employment Relations Board. GC-15. On June 23, Wood again wrote Andretta, this time asserting that Colony's termination of the bargaining unit employees would violate several provisions of the CBA. GC-16. On June 27, 1997, Colony sent letters to Wood and Union President Ozzi Martucci, providing written notice, pursuant to the WARN Act, of Colony's intention to permanently close the Albany facility as of August 15, 1997. GC-17a-b. The letters indicated that a total of 57 employees would be affected, including bargaining unit employees. Id. Moreover, Colony began hiring for the expanded facility by the end of June. Tr. at 48, 678-79.
On July 14, 1997, after a meeting with the bargaining unit employees, the Union informed Colony that 41 bargaining unit employees were "ready, willing and able to be relocated to [Colony's] Kingston operation and becoming [sic] employed there when and if [Colony] relocate[d][its] present Albany County operation." GC-19. Wood wrote Andretta again the next day, iterating his request to meet with Colony and discuss the decision to relocate, its effect on the employees and the application of the CBA to Kingston. GC-20.
Between July 17 and 20, 1997, both Colony's counsel, Glen P. Doherty, and NLRB Field Examiner, Barnett L. Horowitz, contacted the office of Union counsel Dominick P. Tocci indicating that Colony was willing to schedule dates to bargain over the effects of the relocation. Tr. at 698-701; R-13; R-2. On July 21, 1997, Tocci contacted Doherty and the parties agreed to meet on July 24, 1997.
Present at the July 24, 1997 meeting were Jost and Doherty for Colony, and Wood, Tocci and Union Stewards Bob Vickers, Bob Haight and Gary Brown for the Union. During the meeting, Colony explained that the relocation essentially was a cost-saving measure, and that it had hired 55 employees to fill the new positions in Kingston. Tr. at 145. The Union took the position that the bargaining unit employees had the right to be transferred to Kingston. Id. at 146. Doherty countered that he didn't believe the bargaining unit employees had a right to the Kingston positions, and that Colony's only obligation was to bargain over effects such as severance pay. Id. at 146, 704-05; R-17.
Doherty also testified at the hearing that Tocci's position was that Colony was required to bargain over the decision to relocate to Kingston, or "at a minimum, the entire work force goes to Kingston at current terms." Tr. at 705. Doherty also testified that Tocci asserted that the Union would not bargain over effects until the NLRB, a court or an arbitrator ruled on Colony's obligation to bargain over the relocation decision. Id.2 In an affidavit sworn to July 31, 1997, Wood stated that the Union, at the July 24 meeting, took the position that it would like to reserve its right to bargain over effects until the NLRB and arbitration actions were finalized. R-5 ¶ 7. Tocci himself testified that he suggested only that effects bargaining be "put off" for a little while due to the pendency of the NLRB matter and state arbitration proceeding. Tr. at 588.
The following day, Doherty sent Tocci a letter by fax. The letter stated:
I am writing as a follow-up to yesterday's bargaining session during which you stated that your client, Local Union No. 669, was unwilling to bargain over "effects" due to your position that Colony was and is required to bargain over its decision to relocate certain work performed at [the Albany] facility. I believe that your position is contrary to the holding of Dubuque Packing Company, and as I advised you, inasmuch as Colony's relocation is currently in progress, the Union's refusal to bargain over "effects" compromises Colony's ability to bargain in good faith over the issue. Please be advised that Colony is...
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