Ley v. Rochester Reg'l Joint Bd.
| Decision Date | 17 November 2014 |
| Docket Number | No. 14–CV–6605 EAW.,14–CV–6605 EAW. |
| Citation | 59 F.Supp.3d 565 |
| Parties | Rhonda P. LEY, Petitioner, v. ROCHESTER REGIONAL JOINT BOARD, LOCAL 14A, Respondent. |
| Court | U.S. District Court — Western District of New York |
Jesse S. Feuerstein, National Labor Relations Board, Buffalo, NY, for Petitioner.
DECISION AND ORDER
Petitioner, Rhonda P. Ley, (“Petitioner”) Regional Director of the Third Region of the National Labor Relations Board (“Board”), brings this petition pursuant to Section 10(l ) of the National Labor Relations Act (“the Act”), 29 U.S.C. § 160(l ), seeking to preliminarily enjoin Respondent Rochester Regional Joint Board, Local 14A (“Union”) from engaging in alleged unfair labor practices in violation of Sections 8(b)(4)(ii)(A) and (B), as well as Section 8(e) of the Act. (Dkt. 15).
Petitioner claims that Article XXII of the collective bargaining agreement (“CBA”) between the Union and the Employer, Xerox Corporation (“Employer”), constitutes a “union signatory” agreement in violation of the Act, and that the Union's continued attempts to enforce Article XXII constitute additional violations of the Act. The Union maintains that Article XXII is a lawful work preservation provision and seeks to pursue arbitration to examine Article XXII in accordance with the terms of the CBA.
For the reasons set forth below, the Court finds that Petitioner has demonstrated that there is reasonable cause to believe that the Union is violating the Act, and that a preliminary injunction enjoining the Union from seeking to enforce Article XXII pending the Board's final adjudication of the matter is just and proper.
The Union and the Employer have been parties to a CBA for at least 25 years. (Dkt. 16 at 2). The most recent version of the CBA is effective June 2, 2014 through June 1, 2018. (Dkt. 15 at 4). The Employer and Jones Lang Lasalle America, Inc. (“JLL”) are parties to a separate agreement whereby JLL manages and administers the Employer's real estate, and have been parties to such an agreement since approximately 2008. (Dkt. 13–2 at 3). On or about November 1, 2012, JLL and the Employer entered into the current version of this real estate agreement. (Id.).
According to the Employer, in April 2014, it informed the Union that it intended to seek to subcontract certain work to JLL later in the year. (Id. ).
On July 24, 2014, JLL representative David Nappi and Employer representative Linda Kelly met with the Union's business representative Roger LaDue. (Id. ). At this meeting, Ms. Kelly alleges that she informed Mr. LaDue of the specific tasks that the Employer intended to contract to JLL, and Mr. LaDue told Ms. Kelly that subcontracting this work would violate Article IIB of the CBA. (Id. at 4).
On July 28, 2014, Mr. Nappi and Ms. Kelly met with the Union's representative Gary Bonadonna to discuss the subcontracting plans. (Id. ). According to Ms. Kelly, Mr. Bonadonna stated that contracting this work would violate Article IIB of the CBA. (Id. ).
According to Ms. Kelly, on August 12, 2014, the Employer decided to keep some of the work in-house that it had intended to subcontract, but still intended to subcontract work to JLL. (Id. ).
On August 21, 2014, the Union filed a grievance against the Employer, claiming that the Employer violated Article XXII of the CBA by subcontracting facilities work. (Id. at 4, 9).
On September 3, 2014, the Employer and the Union met to discuss the grievance, and according to Ms. Kelly, Mr. LaDue indicated that he wanted a written confirmation from JLL that it would honor the Union contract, pursuant to Article XXII of the CBA. (Id. at 4).
The Employer filed a complaint with the Board alleging that the Union was engaging in unfair labor practices under the Act and Petitioner, as Regional Director, investigated the claims against the Union. (Dkt. 13–3 at ¶ 3).
Upon investigation, Petitioner determined that there was “reasonable cause to believe that [the Union] has violated the Act by seeking to enforce an unlawful agreement,” and that, “unless enjoined, [the Union] will continue to seek to enforce the unlawful agreement.” (Id. at ¶¶ 3–4).
On October 16, 2014, Petitioner filed a petition with this Court seeking a preliminary injunction enjoining the Union from giving force and effect to Article XXII of the CBA through pursuit of the grievance by arbitration. (Dkt. 1). Petitioner also filed a motion on that date to expedite the matter. (Dkt. 2).
On October 27, 2014, the Union filed a separate, but related, lawsuit with this Court under case number 14–CV–6607 against the Employer, and filed a motion for a preliminary injunction to compel the Employer to participate in arbitration of the Union's grievance and to enjoin the Employer from subcontracting work to JLL pending the decision of the arbitrator. The Union also filed a motion for an expedited hearing of the matter.
On October 29, 2014, this Court issued an order granting Petitioner's motion for an expedited hearing and scheduled a hearing for November 17, 2014, before the undersigned. (Dkt. 7). On the same date, the Court issued an order granting the Union's motion for an expedited hearing in case number 14–CV–6607, to be heard on November 17, 2014, before the undersigned.
On November 5, 2014, Petitioner filed an amended petition, adding claims that the Union's lawsuit against the Employer further violated the Act. (Dkt. 15).
The subcontracting agreement between the Employer and JLL is scheduled to take effect November 18, 2014. (Dkt. 13–2 at 6). According to Mr. Nappi, pursuant to this agreement, while the Employer would control the work to be performed, JLL would determine the employees who perform the work. (Id. at 7).
Section 10(l ) provides that, once a complaint of a Section 8(e) violation has been brought to the Board, the Regional Director conducts a preliminary investigation and determines if there is reasonable cause to believe that the Union is engaging in unfair labor practices under the Act. 29 U.S.C. § 160(l ). If the Regional Director finds that the Union is engaging in unfair labor practices, he or she is required to petition the district court for injunctive relief pending “final adjudication” of the matter by the Board. Id. Such a petition is currently before the Court.
When considering a Section 10(l ) request for injunctive relief, the Court examines: (1) whether there is “reasonable cause to believe” that the Union violated the Act, and (2) whether injunctive relief is “just and proper.” Silverman v. Local 78, Asbestos, Lead & Hazardous Waste Laborers, 958 F.Supp. 129, 133 (S.D.N.Y.1996) (citing Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047 (2d Cir.1980) ).
Blyer v. Staten Island Cable LLC, 261 F.Supp.2d 168, 170 (E.D.N.Y.2003) ; see also Danielson v. Int'l Org. of Masters, Mates & Pilots, AFL–CIO, 521 F.2d 747, 751 (2d Cir.1975) (). “The Board, rather than the district courts, remains the primary fact finder and primary interpreter of the statutory scheme.” McLeod v. Nat'l Maritime Union, 457 F.2d 490, 494 (2d Cir.1972).
Petitioner claims that Article XXII of the CBA is a union signatory agreement in violation of Section 8(e) of the Act. (Dkt. 13–4 at 6). Petitioner also argues that the Union's attempts to enforce Article XXII constitute further violations of the Act. (Id. at 4). The Union argues that Article XXII is intentionally overbroad and ambiguous, but is intended to be a permissible work preservation provision. (Dkt. 16 at 11–16). Therefore, the Union argues, arbitration of the grievance is required to adhere to the terms of the CBA and determine the extent to which Article XXII is enforceable. (Id. at 16–18).
Section 8(e) provides in relevant part, that:
It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or cease doing business with any other person, and any other contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void....
29 U.S.C. § 158(e).
Although the Union argues that Article XXII has the primary objective of preserving work, the provision makes no reference to wage or work preservation. Article XXII states, in part:
There shall be no Transfer of Business unless at least sixty (60) days prior to the effective date of such Transfer of Business the Company has delivered to the Manager of the Rochester Joint Board a binding written commitment by the Transferee to assume all of the Company's obligations under this Agreement. In addition, the Company...
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