Maram v. Universidad Interamericana de Puerto Rico, Inc.

• Decision Date: 14 December 1983
• Docket Number: No. 83-1246,83-1246
• Citation: 722 F.2d 953
• Parties: 115 L.R.R.M. (BNA) 2118, 99 Lab.Cas. P 10,634, 15 Ed. Law Rep. 84 Michael S. MARAM, Acting Regional Director of Region 24 of the National Labor Relations Board, For and Behalf of the National Labor Relations Board, Petitioner, Appellant, v. UNIVERSIDAD INTERAMERICANA DE PUERTO RICO, INC., Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 953

722 F.2d 953

115 L.R.R.M. (BNA) 2118, 99 Lab.Cas. P 10,634,

15 Ed. Law Rep. 84

Michael S. MARAM, Acting Regional Director of Region 24 of

the National Labor Relations Board, For and Behalf

of the National Labor Relations Board, Petitioner, Appellant, v. UNIVERSIDAD INTERAMERICANA DE PUERTO RICO, INC., Respondent, Appellee.

No. 83-1246.

United States Court of Appeals, First Circuit.

Argued Sept. 13, 1983.

Decided Dec. 14, 1983.

Jean Seibert Stucky, Atty., Washington, D.C., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Harold J. Datz, Associate Gen. Counsel, Joseph E. Mayer, Asst. Gen. Counsel, and Joseph P. Norelli, Deputy Asst. Gen. Counsel, N.L.R.B., Washington, D.C., were on brief, for petitioner, appellant.

Francisco M. Ramirez Rivera, San Juan, P.R., with whom William Lespier, Francisco M. Ramirez, Agustin Collazo, San Juan, P.R., and Lespier, Munoz Noya & Ramirez, Hato Rey, P.R., were on brief, for respondent, appellee.

Vincente J. Antonetti, Santwice, P.R., with whom Goldman & Antonetti, Santwice, P.R., was on brief, for intervenor Caribe Cleaning Services, Inc.

Before CAMPBELL, Chief Judge, ALDRICH and COWEN ^*, Senior Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

The National Labor Relations Board appeals from the denial of its application for a preliminary injunction under section 10(j) of the NLRA, 29 U.S.C. Sec. 160(j), requiring Universidad Interamericana de Puerto Rico to restore its discharged janitorial employees pending resolution of an underlying unfair labor practice proceeding. The district court, applying a two-step analysis used by many circuits, see Solien v. Merchants Home Delivery Service, Inc., 8 Cir., 1977, 557 F.2d 622, 626, found no reasonable cause to believe that an unfair labor practice had been committed, and concluded that, in any event, an injunction would not be "just and proper." Maram v. Universidad Interamericana de Puerto Rico, Inc., D.P.R., 1983, 559 F.Supp. 255, 262, 264. We disagree with both conclusions, and rule that an injunction should issue.

The controversy centers around defendant University's wholesale firing of the janitorial forces at its new Rio Piedras campus, on September 20, 1982. In their stead, University subcontracted Caribe Cleaners, Inc., intervenor, to maintain the campus, at a considerable financial saving. The Board charges the firing was principally intended to thwart a union organizing effort, and that University violated 29 U.S.C. Secs. 158(a)(1) and (3). University claims it had no knowledge of any union organizing on September 17, when the decision to subcontract was made, and that the discharge was purely a business decision.

Facts

The district court held a five-day, trial type hearing. The record shows that University began to reevaluate its maintenance services in July, 1981, in contemplation of switching its main campus from Bayamon to new facilities in Rio Piedras. It solicited and received bids from three independent contractors, including Caribe Cleaners. In December 1981, however, University President Cruz rejected University Chancellor Cartegena's suggestion that Caribe be hired to do the cleaning, and, instead, hired Caribe merely to train University's present employees. The janitors began work at the Rio Piedras campus on January 20, 1982. Caribe's training contract expired at the end of March. By that time, University officials already had received many complaints about the quality of maintenance, and Caribe's contract was not renewed. Instead, on July 1, 1982, University retained System for Planning and Management to consult and supervise on matters relating to business and grounds. System, through its President Duhamel Rivera, was instructed to concentrate on the cleaning program and on a plan to prevent deterioration of the physical plant.

On August 2, 1982, Duhamel Rivera met with the janitorial employees and told them of a need to improve cleaning services, and on August 30, the day fall semester classes started, implemented a new work schedule calling for a six-day week, placing the emphasis on night shift cleaning. Also on August 30, union organizer Jose Figeroa enrolled at the Rio Piedras campus. Prior to that date, Figeroa had been in touch with one or more janitorial employees in an attempt to organize a union. Although the record is cloudy, after that date Figeroa apparently met several times with employee Angel Gonzalez, and with other employees. None of this activity took place on campus. On September 15 and 16, employees Gonzalez and Rene Oyola distributed, and received back signed, some union authorization cards. There is no claim that University knew of union organizing before this.

Meanwhile, University's concern with its cleaning program continued. On September 7 and 8, Chancellor Cartegena met with the campus Deans and received more complaints about the cleaning. On September 10, Rivera met again with the janitors, who requested additional personnel and a change in the newly implemented work schedule. Pursuant to these suggestions, Rivera prepared a supplementary budget request calling for 12 1/2 new janitors and a budget increase of $166,000, which he presented to Chancellor Cartegena on September 15. Cartegena inquired whether Rivera had considered the subcontracting alternative, and whether Rivera could "guarantee" satisfactory cleaning. Rivera responded negatively, and Cartegena then instructed him to prepare a comparative cost analysis in conjunction with Dean Hernandez. Later that day, Rivera met again with the janitors, told them about the supplementary proposal, and told them that their jobs depended on a good effort in the upcoming months.

University's testimony was that on September 16, Dean Hernandez submitted to Cartegena a written comparative cost analysis showing a $247,826 first year savings from contracting out. This analysis, signed and dated September 16, 1982 by Hernandez, was based essentially on the Caribe bid of 11 months earlier. No one asked Caribe whether the bid was still open. That same day Duhamel Rivera and Jesus Rivera, University's maintenance director, requested meetings with Angel Gonzalez and Rene Oyola. The evidence concerning these meetings is in sharp dispute. The Riveras claimed they planned to see seven "key" janitors over two days, in an attempt to foster support for the new working arrangements. They claim that union organizing was never mentioned. Gonzalez and Oyola, on the other hand, allege they both were asked about union activity, and whether they were passing out cards. In addition, both claim they were warned that union activity could cost them their jobs.

On the morning of September 17 Cartegena met with University President Cruz, and again recommended that Caribe be subcontracted, allegedly based upon the September 16 cost analysis. Cartegena felt the University had "done everything," but "the situation did not improve," in fact had deteriorated, since more manpower had been requested. Cruz asked whether the Caribe bid was still open. Cartegena requested that Hernandez call Caribe, which he did, finding the bid still open. Cruz allegedly then and there decided to subcontract.

University's testimony was that Cruz then called Felix Ocasio, the Vice President in charge of administration. Ocasio recommended that any change of personnel be carried out as quickly as possible; he wished to avoid employee vandalism and violence that University had encountered in the past. Cruz then inquired how quickly Caribe could begin; the same series of phone calls ensued, and it was reported that Caribe could begin on Monday, September 20. At 4:30 p.m. on Friday, the 17th, Caribe met with University and an understanding was reached. Inter alia, Caribe agreed in principle to buy cleaning materials recently acquired by University, as well as its cleaning inventory. A written agreement, in dollars, was executed on Wednesday, the 22d.

At 4:15 p.m. Monday, the janitors were advised on their immediate termination, and Caribe took over at 7:00 p.m. That same day the union filed a representation petition with the Board.

Applicable Law

While the present injunction was sought under section 10(j) of the Act, most of the decided cases arise under section 10(l ). Section 10(j) reads:

"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. Sec. 160(j) (emphasis supplied.) Section 10(l ) reads:

"Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(A), (B) or (C) of section 158(b) of this title, or section 158(e) of this title or section 158(b)(7) of this title, the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. If, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition any United States district court within any district where the unfair labor practice in question has occurred, is alleged to have occurred, or wherein such person resides or transacts business, for appropriate injunctive relief pending the final adjudication of...