Paulsen ex rel. Nat'l Labor Relations Bd. v. All Am. Sch. Bus Corp.
| Decision Date | 28 August 2013 |
| Docket Number | No. 13–CV–3762 (KAM).,13–CV–3762 (KAM). |
| Parties | James G. PAULSEN, Regional Director of Region 29 of the NATIONAL LABOR RELATIONS BOARD, for and on behalf of The National Labor Relations Board, Petitioner, v. ALL AMERICAN SCHOOL BUS CORP., ANJ Service, Inc., Atlantic Queens Bus Corp., Bobby's Bus Co. Inc., Boro Transit, Inc., B–Alert Inc., Atlantic Escorts Inc., City Wide Transit, Inc., Canal Escorts, Inc., Cifra Escorts, Inc., Empire State Escorts, Inc., Gotham Bus Co. Inc., Grandpa's Bus Co., Inc., Hoyt Transportation Corp., IC Escorts Inc., Kings Matron Corp., Logan Transportation Systems, Inc., Lonero Transit Inc., Lorissa Bus Service Inc., Mountainside Transportation Co., Inc., Pioneer School Bus Rental, Inc., Pioneer Transportation Corp., Rainbow Transit Inc., Amboy Bus Co., Inc., Reliant Transportation, Inc., RPM Systems Inc., School Days Inc. and Tufaro Transit Co. Inc., Respondents. |
| Court | U.S. District Court — Eastern District of New York |
OPINION TEXT STARTS HERE
Annie Hsu, Erin E. Schaefer, Nancy B. Lipin, National Labor Relations Board, Brooklyn, NY, Nancy K. Platt, Paul Augustus Thomas, National Labor Relations Board, Washington, DC, for Petitioner.
Richard Milman, Michael James Mauro, Milman Labuda Law Group PLLC, New Hyde Park, NY, Jessica Lee Boffa, Kevin Michael Brown, Timothy Harris Wolf, Jeffery D. Pollack, Mintz & Gold LLP, New York, NY, for Respondents.
Petitioner James G. Paulsen, Regional Director of Region 29 of the National Labor Relations Board (“NLRB”), acting for and on behalf of the NLRB, has filed a motion seeking a preliminary injunction under section 10(j), 29 U.S.C. § 160(j), of the National Labor Relations Act (“the Act”), 29 U.S.C. §§ 151–169. Respondents are companies that contract with the New York City Department of Education (“DOE”) to provide school bus transportation services. Petitioner seeks a preliminary injunction (i) ordering respondents to bargain in good faith, and (ii) ordering rescission of the unilateral changes imposed by respondents when they implemented their best and final Offer on March 22, 2013.
After reviewing the briefing by the parties and amicus curiae Local 1181–1061, Amalgamated Transit Union, AFL–CIO (“Local 1181”), the transcript (“Tr.”) and exhibits presented at the NLRB hearing before Administrative Law Judge Raymond P. Green (“ALJ hearing”), and hearing oral argument, the court grants petitioner's request for a preliminary injunction for the reasons provided below.
On July 3, 2013, petitioner filed the instant action seeking a preliminary injunction under section 10(j) of the Act against respondents. (ECF No. 1, Motion for Preliminary Injunction, 7/3/13.) An order to show cause hearing regarding the motion was initially scheduled for July 16, 2013. (ECF No. 2, 7/13/13.) Respondents moved to postpone the preliminary injunction hearing until after the conclusion of the ALJ hearing concerning the same issues that was scheduled to commence on July 22, 2013. (ECF No. 6, Letter Motion to Adjourn Conference, 7/8/13.) On July 9, 2013, the court held a telephonic hearing concerning the motion and ruled, over petitioner's objection, that it was appropriate to postpone the hearing until the conclusion of the ALJ hearing. ( Id.) The court also subsequently granted Local 1181's motion to appear as amicus curiae. (Order Granting Motion for Leave to Appear as Amicus Curiae, dated 7/12/13.)
On July 12, 2013, respondents filed an answer to the petition, a counterclaim against petitioner, and a third party complaint against NLRB members Sharon Block, Richard Griffin, and NLRB acting general counsel Lafe Solomon. (ECF No. 18, Answer, Counterclaim, and Third Party Complaint, 7/12/13.) Respondents, despite their earlier application to postpone the preliminary injunction hearing pending the ALJ hearing, also moved for a temporary restraining order and preliminary injunction to enjoin the ALJ hearing, arguing that the NLRB was acting unconstitutionally without a lawfully appointed quorum. (ECF No. 25, Motion for Temporary Restraining Order, Motion for Preliminary Injunction, 7/17/13). The NLRB opposed respondents' application for a temporary restraining order and preliminary injunction on July 18, 2013, (ECF No. 26, Memorandum in Opposition to Motion for Temporary Restraining Order, Motion for Preliminary Injunction, 7/17/13), and the court denied respondents' motion for a temporary restraining order and preliminary injunction, (Order dated 7/18/13; Order Denying Motion for Temporary Restraining Order and Preliminary Injunction dated 7/19/13). The ALJ hearing took place from July 22 to 26, and July 29 to July 31, 2013. Briefing on the preliminary injunction motion was completed on August 12, 2013, (ECF Nos. 47–55), and the court heard oral argument on the preliminary injunction motion on August 20, 2013, (Minute Entry dated 8/20/13). Following oral argument, respondents submitted a notice of supplemental authority concerning the petitioner's legal authority to file a 10(j) petition, (ECF No. 59, Respondents' Notice of Supplemental Authority, 8/21/13), and petitioner submitted a response on August 23, 2013, (ECF No. 62, Reply in Opposition, 8/20/13).
The respondents in this case are 28 companies that contract with the New York City Department of Education (“DOE”) to provide school bus transportation for general and special education students. (Tr. at 79–80.) Respondents employ 8,800 school bus drivers and escorts (employees who assist special education students), who are represented by Local 1181. ( Id. at 83, 272–273.) These employees comprise 70–75% of all school bus drivers and escorts who transport children for the DOE. ( Id. at 273.) Nearly all respondent companies and Local 1181 have bargained in contract negotiations for over thirty years. ( Id. at 80–81.) During that time period, Local 1181 has signed identical collective bargaining agreements (“CBAs”) with each respondent. ( Id. at 79–80.) Respondents have historically bargained together and submitted one proposal to Local 1181. ( Id. at 80, 83.)
The previous CBA ran from July 1, 2009 to December 31, 2012 (“2009–2012 CBA”). (General Counsel's Exhibit (“GC Ex.”) 2.) For the first time in the parties' bargaining history, that CBA included a Most Favored Nations (“MFN”) clause. ( Id. at Section 51.) Under the MFN clause, if Local 1181 granted any employer certain specified economic terms more favorable than the equivalent terms in the CBAs with respondents, then any respondent could adopt those more favorable terms in its CBA with Local 1181. ( Id.) The MFN clause contained a sunset provision, under which the MFN clause ended with the expiration of the 2009–2012 CBA. ( Id.) Respondents had insisted on an MFN clause in the 2009–2012 CBA because New York City had indicated it wanted to solicit bids for school bus transportation contracts. (Tr. at 1315–1317.) During the negotiations of the 2009–2012 CBA, respondents repeatedly asked for the MFN clause, and Local 1181 repeatedly refused the request. ( Id. at 89–90.) Local 1181 eventually agreed to the MFN clause on the last day of negotiations after securing other items from respondents, ( id.), however, there is no evidence that the MFN clause was ever invoked by the respondents. Jeffrey Pollack (“Pollack”), an attorney for respondents, was their main spokesperson at the 2009 bargaining sessions, and Michael Cordiello (“Cordiello”), the president of Local 1181, was the spokesperson for the union. ( Id. at 89.)
Respondents also signed separate contracts with the city in connection with DOE school bus route contracts. Since 1979, when Local 1181 participated in a lengthy strike, the city has required every contract with every school bus company providing K–12 transportation services to contain what is known as the Employee Protection Provision (“EPP”), ( id. at 83–84, 111, 295), which is in turn referenced in the contracts the bus companies have with Local 1181, ( id. at 1077). Under the EPP, any Local 1181 member who loses his or her job is placed on a master seniority list, and companies with DOE contracts are required to hire those employees off the master seniority list in order of seniority. ( Id. at 83–87, 300–308.) At least once a year, during an event called the “Master Pick,” displaced employees select new employers based on seniority. ( Id. at 300–308.) A Local 1181 employee maintains his or her seniority, and attendant wages and benefits, when joining a new employer. ( Id. at 83–84, 300–301.)
In 2011, the New York Court of Appeals ruled that EPPs violated New York laws that require contracts for public work to be awarded to the lowest responsible bidder. In re L & M Bus Corp. v. New York City Dep't of Educ., 17 N.Y.3d 149, 927 N.Y.S.2d 311, 950 N.E.2d 915, 922 (2011). In its decision, the Court of Appeals subjected EPPs to heightened scrutiny because they were “atypical, patently restrictive, comprehensive prebid specifications ... [with] potential for anticompetitive consequences.” Id., 927 N.Y.S.2d 311, 950 N.E.2d at 921. The court explained that id., 927 N.Y.S.2d 311, 950 N.E.2d at 921, and noted that the DOE had failed to show “how EPPs reduce costs or prevent disruption in service,” id., 927 N.Y.S.2d 311, 950 N.E.2d at 922.
In December 2012, Mayor Michael Bloomberg announced that New York City would begin bidding out transportation contracts for certain routes that were expiring in 2013, and that the new contracts would not contain EPPs. (Tr. at 87–88, 109–110.) This development significantly weakened the ability of respondents to win bids on new contracts because respondents had to account for EPP...
To continue reading
Request your trial
-
Dep't of Cent. Mgmt. Servs. v. Ill. Labor Relations Bd.
...not move to economic packages until this issue was resolved. Erie Brush , 700 F.3d at 23. In Paulsen v. All American School Bus Corp. , 967 F.Supp.2d 630, 642-43 (E.D.N.Y. 2013), the court stated there was "no complete breakdown in the entire negotiations," where there was substantial movem......
-
Hooks ex rel. Nat'l Labor Relations Bd. v. Hood River Distillers, Inc.
...of the equities "tips sharply" in favor of an injunction, and the government shows the other two factors. Frankl I, 650 F.3d at 1355 (quoting All. for the Wild Rockies v. Cotrell, 632 F.3d 1127, 1131-34 (9th Cir. 2011)). Additionally, the Court "must evaluate the traditional equitable crite......
-
Hooks ex rel. Nat'l Labor Relations Bd. v. Hood River Distillers, Inc.
...of the equities "tips sharply" in favor of an injunction, and the government shows the other two factors. Frankl I, 650 F.3d at 1355 (quoting All. for the Wild Rockies v. Cotrell, 632 F.3d 1127, 1131-34 (9th Cir. 2011)). Additionally, the Court "must evaluate the traditionalequitable criter......