Paulsen v. Primeflight Aviation Services, Inc.
MEMORANDUM DECISION AND ORDER dated 12/29/16 denying PrimeFlight's 31 Motion for a stay of the Preliminary Injunction. ( Ordered by Judge Brian M. Cogan on 12/29/2016 ) (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------JAMES G. PAULSEN, Regional Director of
Region 29 of the National Labor Relations
Board, for and on behalf of the NATIONAL
LABOR RELATIONS BOARD,
-againstPRIMEFLIGHT AVIATION SERVICES, INC.,
DECISION AND ORDER
16 Civ. 5338 (BMC)
COGAN, District Judge.
Before me is the motion of respondent PrimeFlight Aviation Services, Inc.
(“PrimeFlight”) for a stay of the Preliminary Injunction issued in this matter under § 10(j) of the
National Labor Relations Act (“NLRA”), pending PrimeFlight’s appeal to the Second Circuit. I
assume the parties’ familiarity with the facts of this case. For the following reasons,
PrimeFlight’s motion is denied.
In this Circuit, a court considers the following factors in determining whether to stay a
judgment or order pending appeal: (1) that the movant is likely to succeed on the merits of its
appeal, (2) that there will be irreparable injury in the absence of a stay, (3) that other interested
parties will not be substantially harmed if the stay is granted, and (4) that the stay is in the public
interest. In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007).
PrimeFlight has not demonstrated the presence of any of these factors.
First, PrimeFlight has not offered any new legal arguments to support a showing that it is
likely to succeed on the merits of its appeals. Rather, it makes the same arguments related to the
Court’s jurisdictional finding, discounting the shift in the National Mediation Board’s position
that contractors of the same type as PrimeFlight are not covered by the Railway Labor Act.
While PrimeFlight points me in the direction of a D.C. Circuit appeal currently sub judice on the
jurisdiction issue, it does not provide me any new precedents or analyses that merit undertaking a
reconsideration of my previous Order.
PrimeFlight similarly argues the same points it did regarding my finding on successorship
under Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 43, 107 S. Ct. 2225, 2236
(1987), specifically that there is reasonable cause to find that PrimeFlight was likely a successor
to Air Serv. PrimeFlight’s disagreements with my application of the facts to the legal test,
without more, are not sufficient to merit reconsideration, as I have already considered
respondent’s arguments when it raised them the first time in opposing the preliminary injunction.
Second, PrimeFlight has not offered any concrete examples of irreparable harm if the stay
is not granted. Instead, PrimeFlight abstractly argues that its right to choose not “to recognize
and bargain” is under attack, as are the rights of the employees who did not elect to have the
union represent them. Neither argument is persuasive when balanced against the harm expressly
prohibited in the NLRA. Here, I found that there was reasonable cause to believe that unfair
labor practices had occurred, and I deemed a preliminary injunction to be a just and proper and
temporary remedy given the pending hearing before the Administrative Law Judge.
Third and related to the previous point, PrimeFlight’s argument that the union will not be
harmed by the stay is unpersuasive and is undercut by the observations I made in granting the
Preliminary Injunction, specifically that there was reasonable cause to believe that PrimeFlight
engaged in anti-union practices that chilled union activity, as supported by affidavits testifying to
employee fears of being seen speaking to union representatives, attending meetings, or voicing
support in any meaningful way. PrimeFlight’s motion does not acknowledge these aspects of
third-party harm in its motion.
Fourth, PrimeFlight argues that the public interest favors a stay because the public is not
served by a potential labor dispute. This is not sufficient. In passing the NLRA, Congress found
that the public interest favors the protection of employee rights from unfair labor practices, and
PrimeFlight has not shown how the risk of a potential labor dispute supersedes my observation
that reasonable cause existed to believe that PrimeFlight had committed unfair labor practices.
When I balance the equities between PrimeFlight and the employees, giving due
consideration to Congress’s intent in passing the NLRA, the text of the Act, and the facts
presented here, I find that the harm of the employees being unrepresented for a year or more is
greater than having PrimeFlight engage in good-faith bargaining. Moreover, the Preliminary
Injunction itself balances the equities between PrimeFlight and the union by imposing a
limitation on bargaining over staffing levels in an effort to avoid imposing unduly burdensome
obligations and costs on PrimeFlight. Therefore, there is no basis for a stay of the Preliminary
Injunction, and PrimeFlight’s motion is denied.
Digitally signed by Brian M.
Dated: Brooklyn, New York
December 29, 2016
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