Baudler v. American Baptist Homes of the West

Filing 55

ORDER Granting 54 Stipulation for Entry of Partial Stay of Preliminary Injunction. Signed by Judge Claudia Wilken on 8/11/2011. (ndr, COURT STAFF) (Filed on 8/11/2011)

1
2
3
4
5
6
7

DAVID S. DURHAM (No. 76296)
[e-mail]
CHRISTOPHER T. SCANLAN (No.
211724)
[e-mail]
GILBERT J. TSAI (No. 247305)
[e-mail]
HOWARD RICE NEMEROVSKI
CANADY FALK & RABKIN
A Professional Corporation
Three Embarcadero Center, 7th Floor
San Francisco, California 94111-4024
Telephone: [phone]
Facsimile: 415/217-5910

GEORGE VELASTEGUI (No. 107847)
VALERIE HARDY-MAHONEY
GARY M. CONNAUGHTON (No.
130889)
JENNIFER E. BENESIS (No. 219559)
National Labor Relations Board
1301 Clay Street, Suite 300N
Oakland, California 94612-5211
Telephone: [phone]
Attorneys for Petitioner
WILLIAM A. BAUDLER, REGIONAL
DIRECTOR OF THE THIRTY-SECOND
REGION OF THE NATIONAL LABOR
RELATIONS BOARD

8
9
10

Attorneys for Respondent
AMERICAN BAPTIST HOMES OF THE
WEST D/B/A PIEDMONT GARDENS

11

UNITED STATES DISTRICT COURT

12
NORTHERN DISTRICT OF CALIFORNIA
13
OAKLAND DIVISION
14
15
16
17

WILLIAM H. BAUDLER, Regional Director
of the Thirty-Second Region of the National
Labor Relations Board, for and on behalf of
the National Labor Relations Board,
Petitioner,

18
19
20
21

Case No. 4:11-cv-02480-CW
Action Filed: May 20, 2011
EMERGENCY STIPULATION FOR
ENTRY OF PARTIAL STAY OF
PRELIMINARY INJUNCTION ;
ORDER THEREON

v.
AMERICAN BAPTIST HOMES OF THE
WEST d/b/a PIEDMONT GARDENS,

Date:
Judge:

For Immediate Consideration
The Honorable Claudia Wilken

Respondent.

22
23
24
25
26
27
28
EMERGENCY STIPULATION FOR PARTIAL STAY OF INJUNCTION 4:11-CV-02480-CW

-1-

1

WHEREAS, on July 19, 2011, this Court granted a preliminary injunction that requires

2

Respondent American Baptist Homes of the West d/b/a Piedmont Gardens (“Piedmont

3

Gardens”), inter alia,

4

employees within 14 days of the injunction’s effective date (which, taking into account the

5

14-day stay granted by this Court, set an ultimate deadline for communicating offers of

6

reinstatement to affected employees of August 16, 2011);

7
8

to issue reinstatement notices to permanently replaced striking

WHEREAS, on the morning of August 9, 2011, and before the events described below,
the Court of Appeals denied Piedmont Gardens’ stay motion;

9

WHEREAS, on the afternoon of August 9, 2011, the parties learned that

10

Administrative Law Judge Burton Litvack of the National Labor Relations Board (“NLRB”)

11

had issued a Decision and Recommended Order (“Decision”), dated August 9, 2011, a true

12

copy of which is attached hereto as Exhibit A;

13

WHEREAS, as pertinent here, the Decision recommends dismissal of those portions of

14

the administrative complaint alleging that the permanent replacement of strikers in August

15

2010 was unlawful (Exhibit A, at 27);

16

WHEREAS, based on this new development, Petitioner Regional Director of NLRB

17

Region 32 (the “Regional Director”), intends to file a motion with this Court that will seek:

18

(1) to withdraw the allegations and requests for relief in its Petition for Section 10(j)

19

Injunction that relate to the striker replacement issue; and (2) to request modification of the

20

injunction with respect to the striker replacement issue;1

21

WHEREAS, Piedmont Gardens and the Regional Director filed in the Court of

22

Appeals on the afternoon of August 10, 2011 an Emergency Joint Motion For Stay, Limited

23

Remand, And Order Abating Proceedings, which included as relevant here a joint request for

24

a stay pending appeal (the “Remand Motion,” a copy of which is attached as Exhibit B);

25

WHEREAS, the Remand Motion called to the Court of Appeals’ attention Rule 62.1 of

26
27
28

1

Both parties to this stipulation reserve the right to file exceptions and/or crossexceptions with the NLRB regarding the Decision.
EMERGENCY STIPULATION FOR PARTIAL STAY OF INJUNCTION 4:11-CV-02480-CW

-2-

1

the Federal Rules of Civil Procedure (and its counterpart, Rule 12.1 of the Federal Rules of

2

Appellate Procedure), which appear to require that the Regional Director’s anticipated

3

motion first be presented to this Court for an indicative ruling stating that this Court is

4

prepared to grant the Regional Director’s anticipated motion and to accept a limited remand

5

from the Court of Appeals, after which the Court of Appeals may remand the matter for the

6

limited purpose of ruling on the Regional Director’s motion;

7

WHEREAS, the time permitted to comply with the procedures set forth in Rule 12.1,

8

even on the basis of unopposed papers, appears unlikely to permit resolution of this issue

9

before August 16th, when offers of reinstatement must otherwise be received by Piedmont

10

Gardens employees under the terms of the injunction; and

11

WHEREAS, the Regional Director will promptly file its moving papers, and the parties

12

will cooperate to facilitate a speedy limited remand so that the Court may promptly entertain

13

the Regional Director’s motion;

14

WHEREAS, the Court of Appeals has not ruled on the Remand Motion but court staff

15

have indicated that the appellate court may require that this Court consider the matters

16

presented herein in the first instance; and

17
18
19
20

WHEREAS, Piedmont Gardens will dismiss its appeal if the Regional Director’s
motion is granted,2
NOW THEREFORE, the parties stipulate and respectfully request that the Court order
as follows:

21

Enforcement of Sections A(2) and B(2) of this Court’s July 19, 2011 injunction

22

(Docket No. 49) is stayed pending consideration of the Regional Director’s anticipated

23

motion to withdraw allegations relating to strike replacements and to modify the injunction

24
25
26
27
28

2

If this Court grants the Regional Director’s request to modify the portion of the
injunction that relates to striker replacements, the only remaining portion of the injunction
requires Piedmont Gardens to enforce a rule limiting employee access to its facility during
non-work hours in a non-discriminatory fashion. The parties do not seek a stay of that
portion of the Court’s injunction, and Piedmont Gardens does not intend to appeal the
injunction if it is modified to be limited to the access issue.
EMERGENCY STIPULATION FOR PARTIAL STAY OF INJUNCTION 4:11-CV-02480-CW

-3-

1

accordingly.

2
3
4
5
6

DATED: August 11, 2011.

7

Respectfully,
DAVID S. DURHAM
CHRISTOPHER T. SCANLAN
GILBERT J. TSAI
HOWARD RICE NEMEROVSKI CANADY
FALK & RABKIN
A Professional Corporation

8
9
10
11

By:

12

/s/ Christopher T. Scanlan
CHRISTOPHER T. SCANLAN

13

Attorneys for Respondent

14

GEORGE VELASTEGUI
VALERIE HARDY-MAHONEY
GARY M. CONNAUGHTON
JENNIFER E. BENESIS

15
16

By

17

JENNIFER E. BENESIS

18

Attorneys for Petitioner

19
ORDER

20
21
22

Pursuant to stipulation, IT IS SO ORDERED.
DATED: August 11, 2011.

23
24

THE HONORABLE CLAUDIA WILKEN

25
26

W03 060010047/1655583/v3

27
28
EMERGENCY STIPULATION FOR PARTIAL STAY OF INJUNCTION 4:11-CV-02480-CW

-4-