Gold v. State Plaza, Inc., Civ.A.06-329(CKK).

Decision Date05 June 2006
Docket NumberNo. Civ.A.06-329(CKK).,Civ.A.06-329(CKK).
Citation435 F.Supp.2d 110
PartiesWayne R. GOLD, Regional Director of Region Five of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner v. STATE PLAZA, INC., a Wholly-Owned Subsidiary of RB Associates, Inc., D/B/A/ State Plaza Hotel, Respondent.
CourtU.S. District Court — District of Columbia

Thomas P. McCarthy, Washington, DC, for Petitioner.

Jonathan Wolfe Greenbaum, Emily Kate Hargrove, Nixon Peabody LLP, Washington, DC, for Respondent.

Devki Kaur Virk, Bredhoff & Kaiser, P.L.L.C., Washington, DC, for Movant.

MEMORANDUM OPINION

KOLLAR-KOTELLY, District Judge.

On February 24, 2006, Petitioner Wayne R. Gold, Regional Director of Region Five of the National Labor Relations Board (hereinafter "NLRB"), for and on behalf of the NLRB, filed a[1] Petition for Injunction under Section 10(j) of the National Labor Relations Act,1 as Amended. Therein, Petitioner alleged that Respondent State Plaza, Inc., a wholly-owned subsidiary of RB Associates, Inc., d/b/a State Plaza Hotel (hereinafter "State Plaza"), has and continues to engage in acts in violation of Sections 8(a)(1), 8(a)(3), and 8(a)(5) of the, Act. Petitioner requested that the instant Court issue injunctive relief pending a final decision by the administrative law judge in Case 5-CA-32594 with respect to these allegations. Also on February 24, 2006, Petitioner requested permission to rely on the record to be developed during the proceedings before the Administrative Law Judge (rather than using the traditional approach of supplying affidavits) as the factual basis for a memorandum to support its Petition. After holding a conference call with the Parties, the instant Court granted Petitioner's request to rely on the administrative record on the narrow grounds that the administrative hearing was scheduled to begin so near in time to the filing of Petitioner's 10(j) Motion that proceeding with a full hearing and/or by submitting independent affidavits would have run contrary to judicial economy in this particular case. Additionally, on March 6, 2006, the instant Court granted the [6] Unopposed Motion of Hotel and Restaurant Employees, Local 25, Unite Here International Union2 for Leave to Participate as Amicus Curiae. Proceedings were held before Administrative Law Judge Karl H. Buschmann between March 13, 2006, and March 17, 2006.

On April 4, 2006, Petitioner filed [12] Memorandum of Points and Authorities in Support of Petition for Preliminary Injunction Under Section 10(j) of the National Labor Relations Act, as Amended, including citations to the administrative record. Local 25 filed a Notice on the same day, joining in Petitioner's Memorandum. On April 24, 2006, State Plaza filed its [14] Opposition. On April 28, 2006, both Petitioner and Local 25 filed Reply Memoranda. See dkt. entries [16] and [17], respectively. The complete transcript of the proceedings before Judge Buschmann was filed with the Court on May 31, 2006. Because Petitioner has met the required traditional four-pronged standard for preliminary injunctive relief that this Court finds applies even to petitions brought under Section 10(j) of the NLRA, this Court shall GRANT Petitioner's [1] Petition for Injunction and order relief as set forth in an accompanying Order.

I: BACKGROUND

Petitioner alleges that Respondent has engaged in acts and conduct in violation of Section 8(a)(1), 8(a)(3), and 8(a)(5) of the NLRA. Pet. at 2. The Petitioner requests that the instant Court grant temporary injunctive relief pending final disposition of matters before the National Labor Relations Board in Case 5-CA-32594. Id.

In Case 5-CA-32594, Local 25's third (and most recent) amended unfair labor charge against Respondent alleges that Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1), 8(a)(3), and 8(a)(5) of the NLRA, interfering, coercing, and restraining employees in the exercise of their rights as guaranteed in Section 7 of the Act. See Pet. at Ex. D. Specifically, this third amended charge, filed on October 31, 2005,3 alleges that State Plaza violated Sections 8(a)(1), 8(a)(3), and 8(a)(5) by the following acts or conduct: dealing directly with employees regarding wages; undermining the union by sponsoring and by soliciting and inducing employees to sign petitions expressing dissatisfaction with the union; inducing employees to sign such petitions by promising pay wage increases in the event that a majority of employees signed; withdrawing recognition from the union since on or about July 5, 2005, without evidence that an uncoerced majority of the employees no longer supported the union; granting employees in the bargaining unit wage increases since on or about July 8, 2005, in accordance with promises made when the decertification petitions were circulated; and engaging in surface bargaining and/or other bad faith conduct designed to delay, hamper and frustrate the union in its efforts to engage in meaningful bargaining over the terms and conditions of employment for the employees represented by the union. Id. This third amended charge likewise states that Respondent impeded employees in the exercise of their Section 7 rights by promulgating an overly broad no-distribution/solicitation rule; created the impression of surveillance of union activity; interrogated employees about their union involvement; threatened employees with termination if they continued to support the union; told employees that Respondent was going to rid itself of the union; told employees that they would receive a raise if they signed a petition seeking the removal of the union; and told employees that Respondent did not want anything to do with them because they supported the union. Id.

After referral of the initial, first, second, and third unfair labor charges to the Regional Director of Region Five of the Board, a Complaint and Notice of hearing under Section 10(b) of the Act were issued. Pet. ¶ 3(e). The operative amended Complaint and Notice of Hearing under Section 10(b) of the Act in Case 5-CA-32594 was issued on December 27, 2005. Id. ¶ 5(a). Respondent filed an Amended Answer on January 9, 2006. Id. ¶ 5(b). Additional changes to the operative Amended Complaint were proposed on March 1, 2006, and answered by Respondent on March 9, 2006.4 As stated above, Petitioner's Petition for Injunction pursuant to Section 10(j) of the Act was then filed before this Court in the interim on February 24, 2006, and briefing citing to the administrative record was filed after the hearing before Judge Buschmann that was held between March 13, 2006, and March 17, 2006.

The bases for injunctive relief included in the Petition before this Court do not differ from the claims before the Board except to the extent that the relief requested from the Board is more extensive than that requested of this Court. Specifically, Petitioner requests injunctive relief from the instant Court, in an effort to restore the status quo ante while awaiting a decision from the Board, ordering State Plaza to cease and desist from the following: withdrawing recognition from Local 25 as the collective-bargaining representative of the unit employees; failing and refusing to recognize and bargain with Local 25; dealing directly with unit employees regarding terms and conditions of work; granting unit employees a unilateral wage raise to discourage employees' union activities and without affording the union an opportunity to bargain; instructing unit employees to solicit and sign a decertification petition; promising unit employees increased benefits and improved conditions of employment if employees sign a decertification petition; coercing employees in the exercise of their Section 7 rights; promulgating and maintaining an overly broad no-distribution rule with respect to union material; creating the impression among employees that their union activities were under surveillance; interrogating employees about their union activities; restraining and coercing employees by soliciting employees to sign a decertification petition; and in any like or related matter interfering with, restraining or coercing employees in the exercise of their Section 7 rights. Petitioner also requests an injunction affirmatively requiring Respondent to recognize and, upon request; bargain in good faith with the union as the certified exclusive collective-bargaining representative of the unit employees regarding their wages, hours, and other terms of employment; rescinding the wage raise granted to unit employees on July 8, 2005, and any other unilateral changes made since State Plaza withdrew recognition from the union on July 5, 2005, if requested by the union; and provide posted notice in Spanish and English of and demonstrate proof of compliance with the injunction in its entirety.5 Pet. at 20-23.

II: LEGAL STANDARD

Pursuant to Section 10(j) of the NLRA,

The Board shall have power, upon issuance of a complaint as provided in subsection (b) of this section charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, 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.

29 U.S.C. § 160(j). While the Parties (and the Court) agree that the Court must determine whether temporary injunctive relief would be "just and proper" in this case, the Parties disagree regarding the legal standard by which the Court should determine whether to issue injunctive relief pursuant to Section...

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