Kelly v. Pearce
| Citation | 178 F.Supp.3d 172 |
| Decision Date | 31 March 2016 |
| Docket Number | 15–CV–5117 (ALC) |
| Parties | Julie Kelly, Plaintiff, v. Mark Gaston Pearce, Kent Hirozawa, Philip Miscimarra, Harry Johnson, III, and Lauren McFerran, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Thomas Michael Murray, Kennedy, Jennik & Murray, P.C., New York, NY, for Plaintiff.
Dawn Laura Goldstein, Matthew Bruenig, National Labor Relations Board-Special Litigation Branch, Washington, DC, for Defendants.
ANDREW L. CARTER, JR.
Before this court are plaintiff's motion for injunctive relief and defendants' motion to dismiss this action. Plaintiff seeks an order vacating a decision from a Regional Director of the National Labor Relations Board (“the Board” or “the NLRB”) and enjoining the NLRB from conducting unit clarification proceedings for newly opened facilities that might be governed by plaintiff's collective bargaining agreements. For the reasons that follow, defendant's motion to dismiss for lack of subject matter jurisdiction is granted. Plaintiff's motion for injunctive relief is denied.
The following facts are taken from the allegations contained in the complaint and the parties' declarations.1 They are construed in the light most favorable to plaintiff.
Plaintiff Julie Kelly is the General Manager of the New York–New Jersey Regional Joint Board, Workers United, A/W SEIU (“the Union” or “the Joint Board”). Compl. ¶ 4. Pursuant to Section 2(5) of the National Labor Relations Act (“NLRA”), this Joint–Board represents employees who work for retail and manufacturing businesses. Id. Local 340 is a subordinate body that represents retail store employees and Local 25 is a subordinate body that represents tailors and other employees performing alteration work in retail stores and alteration shops. Id. Defendants are the board members to the NLRB.2 The NLRB are granted authority to enforce the NLRA through a quasi-judicial forum where they review decisions made in the agency's administrative hearings. Id. ¶ 5.
Local 340 and Local 25 are parties to collective bargaining agreements (“CBAs”) with Brooks Brothers Group, Inc. (“Brooks Brothers” or “the Employer”), a corporation operating luxury retail stores. Id. ¶¶ 6–7. In the relevant period, the CBA between Local 340 and Brooks Brothers described the bargaining unit as follows:
The Employer recognizes the Union as the sole and exclusive collective bargaining agent of all: (i) selling personnel and expediters, housekeeping, shipping, receiving, floor cashier, call desk, on-floor stock, concierge, door greeter, off-floor stock, visual personnel, fitter-tailors [ ], cash office personnel and mailroom personnel, excluding all selling and support supervisory personnel, at its retail stores at Madison Avenue, Liberty Plaza, Broadway, Bleecker Street and Rockefeller Center, New York City, Northern Boulevard, Manhasset, L.I., West Post Road, Eastchester, N.Y., The Westchester, White Plains, N.Y., Roosevelt Field, L.I., Huntington, L.I., Southampton, L.I., West Nyack, N.Y., Stamford, Conn., and any other retail store(s) opened during the terms of this Agreement operated by the Employer under the name “Brooks Brothers” in the City of New York and in the Counties of Nassau, Suffolk, Rockland and Westchester only....
Id. ¶ 7. The CBA between Local 25 and Brooks Brothers contained similar clauses recognizing the bargaining unit and describing how to account for recently opened stores (“recognition clause” and “after-acquired store clause” respectively).
On February 28, 2011, Brooks Brothers opened a new retail store at 1180 Madison Avenue in New York City. Id. ¶ 11. Believing that this store was subject to the after-acquired store clause, plaintiff demanded that Brooks Brothers recognize the unions as the representatives for the employees of this new location. Id. ¶ 12. Brooks Brothers refused to comply with the Union's demand, leading to a flurry of litigation.3 Id. Notably, Brooks Brothers filed a petition with the NLRB to clarify the bargaining unit (“unit clarification petition”). Id. ¶ 13. This petition sought to exclude all employees at the 1180 Madison Avenue store from the Local 340 and Local 25 bargaining units. Id. On October 12, 2012, the Board held a hearing on this petition. Id. ¶ 17. Brooks Brothers asserted that it did not have an obligation to recognize the Unions unless they could demonstrate that they had majority support among the employees of the store. Id. ¶ 18. Conversely, the Unions asserted that the store was an accretion to the larger bargaining unit and that it did not have to demonstrate majority support. Id.
While the petition was pending, the Union and Brooks Brothers engaged in negotiations for the successor CBA agreements for Local 340 and Local 25. Id. ¶ 18. During these discussions, the Union agreed to limit No–Strike clauses of the agreement in exchange for preserving the after-acquired store clauses. Id. ¶ 21.
On December 18, 2015, the Regional Director of the NLRB in Region 2 issued a decision in favor of Brooks Brothers holding that an accretion was inappropriate.
Id. 22. In reaching this determination, the Regional Director provided a thorough analysis of the following question: did the employees at the 1180 Madison Avenue store share an overwhelming community of interest with employees of the stores represented by Local 340 and Local 25. Murray Decl., Ex. A, at 28–38.
On the topic of majority support, the Regional Director provided little commentary. She noted that in the past Brooks Brothers had recognized the unions as representatives of employees in new stores opened in the New York City area without a showing of majority interest in the Union among the employees. Id. at 3. She noted that, nonetheless, the Union had typically obtained and demonstrated a majority showing of interest at the new stores. Id. Finally, the Regional Director found that the Union did not at any point present Brooks Brothers with a showing of majority support among employees at the 1180 Madison Avenue store. Id. at 5.
The Regional Director's decision also addressed two alternate challenges posed by the Union. The Union claimed that (1) the unit clarification would compel a concession by the Union on the scope of the bargaining unit and (2) Brooks Brothers waived their right to use Board processes on issues of employee placement when they agreed to the CBAs' terms, namely the after-acquired store and general arbitration clauses. Id. at 37–38. The Regional Director distinguished the cases cited by the Union on the second point, and noted, inter alia, that the Union and the Employer did not explicitly agree to submit issues to an arbitrator. For the first point, she noted:
[Unlike the cases cited by the Union, t]he petition here does not relate to an employer's attempt to transfer work out of a unit of represented employees. It concerns whether or not a group of unrepresented employees at a new store should be accreted into an existing unit of a subset of the Employer's stores because they lack any separate identity. This decision does not require a concession from the Unions regarding scope. They are free to file representation petitions seeking to add these employees into their represented units through an election procedure. If the employees at 1180 Madison were to select the Unions to represent them and the Employer subsequently refused to bargain with the Unions over the employees as members of the Local 340 and Local 25 units, that refusal might be unlawful and the issue of unit scope might be relevant in any investigation and litigation. It is not at issue in this case.
After the Board's decision, the Union secured majority support among the employees that would constitute the Local 340 unit at the 1180 Madison Avenue store. Compl. ¶ 25. Brooks Brothers refused to recognize the Union as a representative without a determination of majority support through a NLRB election. Id. ¶ 27. On April 21, 2015, the Union sent the NLRB a letter advising it that the Union represents a majority of employees in the Local 340 unit at the 1180 Madison Avenue store and requesting that the Regional Director reconsider her decision and dismiss the petition. Id. ¶ 28. On September 21, 2015, the Board issued an Order denying the Request for Review of the Unit Clarification Decision.4 Murray Supp. Decl., Ex. E.On June 30, 2015, plaintiff initiated the instant action against the Board members. The complaint alleges a violation of Section 8(d) of the NLRA, which prohibits the Board from compelling any party to make a concession or agree to a proposal. Plaintiff alleges that the Board's decision clarifying the 1180 Madison Avenue store out of the Local 340 and Local 25 bargaining units amounted to a compelled concession that Brooks Brothers was unable to achieve in bargaining. The complaint seeks a preliminary and permanent injunction vacating the unit clarification decision of the Board and a permanent injunction restraining and enjoining the NLRB from conducting unit clarification proceedings concerning newly opened...
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