Moore-Duncan ex rel. N.L.R.B. v. Aldworth Co. Inc.
| Decision Date | 20 December 2000 |
| Docket Number | No. CIV. 99-CV-3568 (JBS).,CIV. 99-CV-3568 (JBS). |
| Parties | Dorothy L. MOORE-DUNCAN ex rel. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ALDWORTH COMPANY, INC. and Dunkin' Donuts Mid-Atlantic Distribution Center, Inc., Respondents. |
| Court | New Jersey Supreme Court |
Richard P. Heller, Deena E. Kobell, N.L.R.B., Fourth Region, Philadelphia, PA, for Petitioner.
Paul J. Kingston, Kingston & Hodnett Boston, MA, Frank V. Tedesco, Dilworth, Paxson, Kalish & Kauffman, Cherry Hill, NJ, for Respondent Aldworth Company, Inc.
Mark Peters, Mahoney, Hawkes & Goldings, LLP, Boston, MA, Sharon P. Margello, Staton, Hughes, Diana, Salsbert, Cerra & Mariani, P.C., Morristown, NJ, for Respondent Dunkin' Donuts Mid-Atlantic Distribution Center, Inc.
I. INTRODUCTION
This matter comes before the Court upon a petition by the Regional Director of the National Labor Relations Board ("NLRB" or "Board") for a temporary injunction pursuant to section 10(j) of the National Labor Relations Act (the "Act"), as amended, 29 U.S.C. § 160(j). The petition follows the issuance of an unfair labor practice complaint under section 10(b) of the Act alleging that respondents Aldworth Company ("Aldworth") and Dunkin' Donuts Mid Atlantic Distribution Facility ("Dunkin' Donuts") have engaged, and are engaging in, unfair labor practices within the meaning of sections 8(a)(1), (3) and (5) of the Act by dissuading and/or coercing employees from unionizing, suspending or firing workers suspected of union involvement, and by refusing to negotiate with a duly elected majority collective bargaining unit at the Dunkin' Donuts Mid-Atlantic Distribution Facility in Swedesboro, New Jersey.
At the hearing on the issues raised by this petition and the answers thereto, all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to present relevant evidence, and to argue on the evidence and the law. The Court heard final oral argument on this matter five weeks later. This Court has reviewed the extensive record in this case, including the transcripts of proceedings and other evidence before Administrative Law Judge William G. Kocol, and Judge Kocol's Opinion of April 20, 2000, detailing his findings that the respondents had committed substantial unfair labor practices surrounding union organizing activities and a certification election conducted September 19, 1998. The essential issue under section 10(j) is whether this Court should grant a temporary injunction compelling the respondents to take steps to ameliorate their alleged unfair labor practices pending final determination by the NLRB upon review of ALJ Kocol's decision.
Respondents urge this Court to deny the request for a 10(j) injunction. As a preliminary matter, respondent Dunkin' Donuts denies knowledge of or responsibility for any unfair labor practices carried out by Aldworth, claiming that Aldworth at all times was the sole employer of the workers involved in this case. The Court accordingly must decide whether Aldworth and Dunkin' Donuts are "joint employers" for the purposes of the Act. For reasons discussed in Part II below, the Court finds that the respondents are joint employers, and are jointly liable for any unfair labor practices committed.
Having determined that the respondents are joint employers, the Court must then determine whether the NLRB has satisfied the two-pronged test for 10(j) relief: (1) whether there is reasonable cause to believe the respondents engaged in unfair labor practices; and (2) whether the requested relief — which includes reinstating suspended and/or fired workers, setting aside the prior certification election, and the imposition of a mandatory bargaining order — is just and proper. As discussed below, the Court finds that the petitioner has satisfied both prongs, and will grant the requested injunctive relief.
II. JOINT EMPLOYER ISSUE
The NLRB seeks to compel both Dunkin' Donuts and Aldworth to bargain with the union representing workers at the Dunkin' Donuts Mid-Atlantic Distribution facility in Swedesboro, NJ. The issue of whether Dunkin' Donuts and Aldworth are "joint" employers of these workers is a significant one. Where two employers are found to occupy joint employer status both are required to bargain with a union representing the employees, and thus the joint employer determination governs whether an injunctive order from this Court applies to one or both of the respondents. See Capitol EMI Music, 311 NLRB 997, 1993 WL 195860 (1993), enforced, 23 F.3d 399, 1994 WL 198838 (4th Cir.1994). In joint employer cases, the inquiry focuses on determining which of the two, or whether both, of the employers control the labor relations of a unit of employees. NLRB v. Condenser Corp. of America, 128 F.2d 67 (3d Cir.1942). Where it can be shown that two entities share or co-determine essential matters of employment, both are joint employers. See NLRB v. Browning-Ferris Indus., 691 F.2d 1117, 1124 (3d Cir.1982). With these principles in mind, the Court turns to consider the facts relevant to the joint employer issue.
Respondent Dunkin' Donuts is a nonprofit purchasing and delivery cooperative that operates for the benefit of the individual owners and franchisees of Dunkin' Donuts retail stores. The owners of the retail stores pay a fee to use the services provided by Dunkin' Donuts, and the owners of the member retail shops collectively are the owners of Dunkin' Donuts. (ALJ Dec. at 5.)1 There are about 970 retail members in about 1,200-1,400 retail stores. (Id.) Dunkin' Donuts maintains a distribution facility located in Swedesboro, NJ, where it stores, sells, and trucks goods and products to retail outlets in the Mid Atlantic region. (Id. at 6) The Swedesboro facility ships a total of about 4.2 million pounds of product annually. (Id. at 5.)
Dunkin' Donuts has personnel both in Massachusetts (its home state) and at the Swedesboro facility. Craig Setter is the president of Dunkin' Donuts. Michael Shive is the distribution facility manager for the Swedesboro plant, and is responsible for the warehousing functions of facility maintenance, building and grounds maintenance, and slot location. He creates, maintains, and manages the budget covering all warehouse and transportation functions. (Id.) Reporting to Shive are Thomas Knoble, the transportation manager, and Warren Engard, the warehouse supervisor. (Id.)
Dunkin' Donuts also employs customer service representatives ("CSRs") at the Swedesboro facility. These employees take weekly orders from the retail shops, and make necessary adjustments to drivers' delivery routes. For example, an unusually large order may require placing the store on another delivery route or scheduling an additional delivery. Once the CSR makes the adjustment, he or she then prints the manifests used by the drivers. (Id.)
Respondent Aldworth is a company in the business of leasing drivers, warehouse workers, and other relevant employees to firms whose business involves transporting goods. Kevin Roy, executive vice-president, and Wayne Kundrat, director of operations, work out of Aldworth's main office in Lynnefield, MA. Aldworth employs about 1,500 employees in about 24...
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