Murphy v. Cayuga Medical Center at Ithaca, Inc.

Filing 28

DECISION & ORDER that the Petitioner's 1 Motion for Preliminary Injunction is hereby GRANTED as stated in the Decision and Order; that the Petitioner's 2 Motion to Determine the Petition on the basis of the administrative record is hereby GRANTED; and that Petitioner's 3 Motion to shorten time and for an expedited hearing is hereby DENIED as moot. Signed by Senior Judge Thomas J. McAvoy on 3/22/2017. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
PAUL J. MURPHY, Regional Director of the
Third Region of the National Labor Relations
Board, for and on behalf of the NATIONAL
LABOR RELATIONS BOARD,
Petitioner,
v.

3:17-MC-0004

CAYUGA MEDICAL CENTER OF ITHACA,
Respondent.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
Before the Court is Petitioner’s request for a temporary injunction pursuant to
Section 10(j) of the National Labor Relations Act (“NLRA”), 29 U.S.C. §160(j), requiring
reinstatement of two employees pending final administrative disposition of unfair labor
practices charges brought against the respondent. See dkt. # 1. T he parties have briefed
the issue and the Court has determined to decide the matter on the administrative record
without a hearing.1

1

The Petitioner also moved to have the Court decide the issue on the administrative
record. See dkt. # 2. The Court asked for briefing on this issue. The Respondent argued
that the Court could decide the issue on the record, but contended that the record w as
insufficiently developed for the Court to make a proper conclusion on the injunction. As
this is an argument that goes to the merits of granting the Section 10(j) injunction, the
Court will consider Respondent’s arguments in that context but grant the Petitioner’s
motion. The Petitioner also moves to shorten time and for an expedited hearing on the
Petition. See dkt. # 3. As the Court is now deciding the Petition, the Court will deny that
motion as moot.
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I.

BACKGROUND
This case concerns ongoing disputes surrounding a union organizing campaign led

by 1199 SEIU United Healthcare W orkers East (the “Union”) at Cayuga Medical Center in
Ithaca, New York. The Union has been seeking since early 2015 to organize registered
nurses at the facility. Petitioner, Regional Director for the National Labor Relations Board
(“NLRB”), alleges that Respondent Cayuga Medical Center of Ithaca has engaged in a
vigorous campaign, “replete with unfair labor practices,” to prevent the Union from gaining
a foothold at the Medical Center. The Union has filed numerous unfair labor practices
charges with the NLRB, which the Petitioner investigated, found meritorious, and brought
to a hearing before an Administrative Law Judge. On October 28, 2016, the ALJ issued a
decision that found that the Respondent violated the NLRA in numerous ways, including a
finding that Anne Marshall, one of the nurses who is the subject of the instant petition, had
been improperly targeted for discipline and demotion because of her union activities. See
Exh. I to Petition for Preliminary Injunction, dkt. # 1-3.
On September 29, 2016, the Union filed additional unfair labor practices charges
against the Respondent, alleging that on September 23, 2016, Respondent violated
Section 8(a)(3) by disciplining two nurses, Loran Lamb and Anne Marshall, in retaliation
for their union activities. See Exh. A to Petition, dkt. # 1-1. The Complaint alleged that
Respondent had suspended Lamb and revoked her email access and that Respondent
had threatened discipline and revoked the email access of Marshall. Id. The Union
Amended the charge on November 22, 2016 to allege that Marshal was suspended in
retaliation for her union activities on October 4, 2016. See Exh. B to Petition, dkt. # 1-1.
Another charge, filed on October 12, 2016, alleged that Respondent had been violating
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Section 8(a) of the NLRA since July 2016 by interfering, restraining and coercing
employees from exercising their rights under the Act. See Exh. C to Petition, dkt. # 1-1.
The Union alleged that the Respondent had violated the act by “discriminatorily enforcing
its bulletin board policy, . . . engaging in surveillance of union activity, . . . forcibly removing
an employee from a conversation with a union organizer, and . . . requiring employees to
wear anti-union buttons.” Id.
On November 29, 2016, the Petitioner issued an order co nsolidating the above
cases, setting forth a consolidated complaint, and providing notice of a hearing. See Exh.
D to Petition, dkt. # 1-1. The complaint alleged that in July 2016, the Respondent
“prohibited employees from posting union literature around the facility while permitting
employees to post other literature.” Id. The complaint also alleged that on September 21,
2016, Respondent suspended Loran Lam b and on October 5, 2016, Respondent
terminated her employment. Id. The complaint further alleged that Respondent
suspended Anne Marshall on October 5, 2016, and term inated her employment on
October 6, 2016. Id. The complaint alleges that Respondent engaged in these
employment actions “because the named employees of Respondent formed, joined or
assisted the Union and engaged in concerted activities, and to discourage employees
from engaging in these activities.” Id. Such conduct allegedly violated Section 8(a)(1)
and 8(a)(3) of the NLRA. Id. The NLRB also ordered a response and scheduled a
hearing on the charges to take place before an ALJ on January 9, 2017. The parties
agree that such hearings are presently ongoing.
On February 21, 2017, the Regional Director filed the instant Petition, which seeks
a temporary injunction from the Court reinstating Lamb and Marshall. Petitioner contends
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that Respondent has violated the NLRA by preventing the Union from distributing literature
at the workplace and by firing the two nurses in retaliation for their union activity.
Respondent denies these allegations and insists that the matter provides no basis for
injunctive relief.
II.

LEGAL STANDARD
Petitioner seeks an injunction pursuant to Section 10(j) of the NLRA, 29 U.S.C. §

160(j). That section permits the NLRB, after filing a complaint alleging unfair labor
practices, “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, for appropriate relief or restraining order.” 29 U.S.C. § 160(j). “The courts have
generally issued section 10(j) injuctions only to preserve the status quo while the parties
are awaiting the resolution of their basic dispute by the Board.” McLeod v. General Elec.
Co., 366 F.3d 847, 850 (2d Cir. 1966). A court considering a request for an injunction
under Section 10(j) must apply a two-part test. Hoffman ex rel. N.L.R.B. v. Inn Credible
Caterers, Ltd., 247 F.3d 360, 364 (2d Cir. 2001). “First, the court m ust find reasonable
cause to believe that unfair labor practices have been committed.” Id. at 364-65.
“Second, the court must find that the requested relief is just and proper.” Id. at 365. In
applying the first element, “‘the court need not make a final determination that the conduct
in question is an unfair labor practice. It need find only reasonable cause to support such
a conclusion.’” Id. at 333 (quoting Silverman v. Major League Baseball Player Relations
Comm., Inc., 67 F.3d 1054, 1059 (2d Cir. 1995)). T he district court is to defer to the
NLRB’s “judgment” and “should decline to grant relief only if convinced that the NLRB’s
legal or factual theories are fatally flawed.” Id. (internal citations omitted). As to the
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second element, “‘injunctive relief under § 10(j) is just and proper when it is necessary to
prevent irreparable harm or to preserve the status quo.’” Paulsen v. Remington Lodging &
Hospitality, LLC, 773 F.3d 462, 469 (2d Cir. 2014) (quoting Kreisberg ex rel. N.L.R.B. v.
HealthBridge, 732 F.3d 131, 144 (2d Cir. 2013)). “The principal purpose of a § 10(j)
injunction is to guard against harm to the collective bargaining rights of employees.” Id.
III.

ANALYSIS
A.

Factual Background2

The Petitioner alleges that the campaign to organize nurses at the Cayuga Medical
Center began in early 2015, growing out of nurses’ frustration with persistent staffing
shortages. Anne Marshall, a registered nurse employed by Respondent, served as an
early and vocal advocate for the Union. Loran Lamb, also a registered nurse, joined
Marshall in this public support. Both worked in the intensive care unit (“ICU”). According
to the Petition, both nurses had an “unblem ished” professional record and reputation
before their involvement with the Union.
The earlier decision by an ALJ found, Petitioner points out, that Respondent
engaged in unfair labor practices in violation of Sections 8(a)(1) and 8(a)(3). The ALJ
found that “the net result of [Marshall’s] union activity and her protected and concerted
efforts to challenge the hospital on staffing issues was an employer that engaged in
unlawfuly motivated and discriminatory targeting of her, which led directly to the adverse
2

These facts are taken from exhibits and factual narrative in the Petition, as well as
the exhibits and affidavits provided by Respondent in opposing the request for a
temporary injunction. The Court uses this evidence because of the deference to the
Regional Director’s findings required in a 10(j) proceeding. The Court’s role here is not to
resolve factual disputes, but to determine whether reasonable cause exists to support the
Regional Director’s position based on the evidence provided.
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actions taken against her by the hospital.” Exh. I to Petition, dkt. # 1-1, at 1. This decision
has been appealed to the NLRB and is currently pending. Marshall and Lamb continued
their organizing efforts even after the hearings concerning unfair labor practices. Marshall
periodically maintained an information table in the hospital’s cafeteria, canvassed
employees in the parking lot, wore a union button, sent emails about the union, and put
signs on her car. Lamb advocated for increased staffing, wore a union button on her work
clothes, and attended a hearing on the earlier charges concerning Marshall. Respondent
was aware of these activities, and particularly noticed Marshall’s work; an internal email
concerning responses to the organizing effort included a discussion of the Respondent’s
“Union or Anne Marshall Focus.” The Respondent also allegedly removed literature
Marshall posted from a bulletin board.
On September 11, 2016, Lamb and Marshall, working in the ICU, violated the
Respondent’s blood transfusion policy. That policy requires that two nurses check that the
blood for designated transfusion matches the doctor’s order and the patient’s needs two
times, first at the nurses’ station and then at the patient’s bedside. All parties ag ree that
only Marshall performed the check at the patient’s bedside, even though both nurses
signed a form that appeared as if both had been at the patient’s bedside. T he patient
complained to the charge nurse on duty, and an investigation ensued. Respondent claims
that this conduct violated hospital policy, endangered the patient, and amounted to
falsifying medical records. The Petitioner, citing to confidential statements made to the
Board from other ICU nurses, contends that Lamb and Marshall engaged in a practice
commonly accepted on the unit. Of six ICU nurses questioned, all six testified that they

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checked blood at the nurses’ station, and only one nurse entered the patient’s room to
administer the transfusion. Petitioner further contends these nurses told the administrator
charged with investigating the September 11 incident that they frequently followed the
procedure Marshall and Lamb used. This investigator, Petitioner contends, encouraged
the nurses to testify that they always followed the written procedures.
Respondent suspended and then terminated both Marshall and Lamb.
Respondent’s investigators interviewed Lamb on September 21, 2016. Lamb admitted
that she knew the transfusion policy and had violated it on September 11 by not joining
Marshall in the patient’s room. Respondent suspended Lamb after this meeting. Marshall
was on vacation when this interview occurred, and Respondent suspended Lam b without
interviewing Marshall. Petitioner contends that the decision to suspend and then
terminate Marshall was made before any interview occurred, pointing to a report on the
incident prepared by Respondent’s Director of Patient Services and a draft letter designed
to be sent to employees, physicians and volunteers about the incident. Both of those
documents concluded that Marshall had engaged in misconduct even before the
Respondent had spoken to her about the ev ents in question. Indeed, the draft letter to
employees, Petitioner alleges, included a statement that the nurses had been fired.
Petitioner asserts that these draft documents are “persuasive evidence that the
investigation had a foregone conclusion considering that the nurses interviewed” by
investigators “said they routinely perform blood checks at the nurses’ station; the
investigation was ostensibly ongoing; and Marshall had not yet been suspended,
terminated or even interviewed about the incident.”

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After interviewing Marshall when she returned from vacation on October 4, 2016,
Respondent suspended her. Respondent term inated Lamb on October 5 and Marshall on
October 6. Both resigned in lieu of their discharge. Respondent sent employees an email
explaining the terminations on October 7; this email was nearly identical to the draft
circulated before the Respondent interviewed Marshall. The Petitioner contends that:
Based on the credible testimony of witnesses and documentary evidence . . .
the evidence demonstrates that Marshall and Lamb failed to follow a policy
that Respondent had never before enforced; Respondent knew other nurses
failed to follow that policy; Respondent conducted an investigation with a
predetermined outcome into Marshall and Lamb’s violation of the policy; and
Respondent nonetheless suspended and term inated Marshall and Lamb for
failing to follow this policy.
Petitioner’s Brief, dkt. # 1-5, at 14.
Petitioner points to other incidents where nurses failed to follow the transfusion
policy and did not receive the same discipline as Marshall and Lamb. These incidents
could be seen as more egregious than the one on September 11, 2016, since the patients
in these cases suffered potentially adverse medical reactions to the incidents. In both
cases, the nurses who violated the transfusion policies faced no serious discipline, but
instead were forced to review the transfusion policy with Respondent’s staff. Likewise,
nurses who violated policies and protocols in other areas received instruction rather than
discipline. Respondent had disciplined some nurses who failed to follow protocols, but
under different circumstances. One nurse was terminated, for example, after failing to
follow blood protocols, but that nurse had also diverted narcotics. Other nurses involved
in the incident were simply “debriefed” on the matter.
Petitioner also contends that Respondent’s f iring of Lamb and Marshall has
undermined the Union’s organizing efforts. Petitioner has produced affidavits from nurses
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Respondent still employs who attest to a chilling affect on organizing since the
terminations. See Exhs. F-G, H, J, K, to Petition, dkt. #s 1-2, 1-4, to Petition. Jacq ueline
Thompson’s affidavit, for instance, avers that “[t]he Union and its campaing at the Hospital
were regular topic[s] of conversation amongst employees” with whom Thompson worked
“before Lamb and Marshall were fired.” Thompson Affidavit, Exh. F to Petition, dkt. # 1-2,
at ¶3. Marshall had worn pro-Union buttons, passed out literature, and sent em ails about
the Union through the Respondent’s email system before her termination. Id. at ¶ 4. After
Marshall’s firing, Thompson had “not seen any employee engage in any of these
activities,” and no other employee had contacted her “regarding the continuation of the
organizing effort.” Id. According to Thompson, “[t]he Union organizing campaign is dead
in the water[.]” Id. at ¶ 6. Thompson points to two reasons for this demise: no other
employee wants to lead the organizing effort and “general sense of fear” has followed
“Marshall and Lamb’s terminations.” Id. Thompson herself is not interested in taking a
lead in the organizing campaign for fear of being fired, and because “I feel as though I
would be targeted by hospital management if I attempted to lead the union campaign, and
I do not want that to occur.” Id. Other affidavits similarly find a decline in organizing, less
discussion of the Union, and a decrease in the willingness of employees to be identified
with the Union since the firings. See Exh. G at ¶ 8; Exh. H at ¶ 6, Exh. J at ¶¶ 5-8; Exh. K
at ¶¶ 7-9.
B.

Reasonable Cause

The Regional Director argues that Respondent has violated sections 8(a)(1) and
8(a)(3) of the NLRA. The NLRA provides that “[I]t shall be an unfair labor practice for an
employer (1) to interfere with, restrain, or coerce employees in the exercise of the rights
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guaranteed in section 7" of the NLRA and “(3) by discrimination in regard to hire or tenure
of employment or any term or condition of employment to encourage or discourage
membership in any labor organization.” 29 U.S.C. §§ 158(a)(1), (a)(3). Section 7 of the
NLRA establishes, in relevant part, that “[e]mployees shall have the right to selforganization, to form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other protected activities for their
purpose of collective bargaining or other mutual aid or protection[.]” 29 U.S.C. § 157. “An
employer violates section 8(a)(3) by firing an employee for engaging in union activity.”
New York University Medical Center v. N.L.R.B., 156 F.3d 405, 411 (2d Cir. 1998). Such
conduct also violates section 8(a)(1). Torrington Extend-A-Care Employee Ass’n v.
N.L.R.B., 17 F.3d 580, 591 (2d Cir. 1994). In such cases, “the determ inative issue is the
employer’s motivation.” Id. First, the NLRB must be persuaded “that anti-union animus
contributed to the employer’s decision.” Id. If this prima facie burden is met, “the burden
shifts to the employer to demonstrate by a preponderance of the evidence that the same
employment action would have been taken in the absence of the protected conduct.” Id.
The Respondent argues that the Petitioner has not demonstrated reasonable
cause. The Respondent contends that the f iring of Lamb and Marshall was unrelated to
their union activities. Instead, the nurses were terminated because of “flagrant misconduct
and disregard for patient safety.” Both nurses, after all, are the subject of a State
investigation for the activities that led to their termination, and Cayuga Medical Center
regularly fires employees who falisfy medical records. Moreover, Respondent argues,
Petitioner has not provided any documentary evidence to support its claims for that
Respondent committed unfair labor practices. Respondent further argues that the
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evidence it supplied will substantiate that the terminations were justified and not motivated
by the nurses’ union activity. Injunctive relief is inappropriate here, Respondent argues,
because the administrative record has not been fully developed.
The problem with the Respondent’s position is that the Court’s role here is not to
make credibility determinations or weigh the value of the evidence supporting CMC’s
decision to terminate the nurses against that supporting the Petitioner’s position. Instead,
the Court is to defer to the NLRB’s findings unless those findings are “fatally flawed.”
Hoffman, 79 F.3d at 333. Petitioner “is not required to show that an unfair labor practice
occurred, or that the precedents governing the case are in perfect harmony, but only that
there is ‘reasonable cause to believe that a Board decision finding an unfair labor practice
will be enforced by the Court of Appeals.’” Kaynard v. Mego Corp., 633 F.2d 1026, 1033
(2d Cir. 1980) (quoting McLeod v. Business Machine and Office Appliance Mechanics
Conference Board, 300 F.2d 237, 242 n.17 (2d Cir. 1962)). Ev en where disputed facts
exist, “the Regional Director should be given the benefit of the doubt in a proceeding for §
10(j) relief.” Id.
The Court finds that the facts presented to the Court, giving the Petitioner the
benefit of the doubt, create reasonable cause to believe that the Court of Appeals will
enforce a finding by the NLRB of unfair labor practices in relation to the firing of Nurses
Lamb and Marshall. The Petitioner has put forth evidence, as related above, that creates
reasonable cause to believe that Respondent terminated the nurses because of their
union activity. The Regional Director has presented evidence that indicates that the
actions for which Respondent allegedly fired Lamb and Marshall–failing to both be present
in the room when a transaction occurred and failing to document the transfusion
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truthfully–were actions that did not lead to the firing of other employees who engaged in
the same behavior. The Regional Director has also presented evidence that makes it
reasonably likely that Respondent was motivated by anti-union animus for the firing.
Beyond the extreme action taken against nurses with stellar work records who were
involved vociferously in the union campaign, the Petitioner has also provided evidence that
an ALJ has already found that Respondent acted out of anti-union animus in previously
disciplinary actions against Marshall. Courts are permitted to use such decisions in
evaluating a 10(j) motion, since “the ALJ’s factual and legal determinations suppy a useful
benchmark against which the Director’s prospects of success may be weighed.” Bloedorn
v. Francisco Foods, Inc., 276 F.3d 270, 288 (2d Cir. 2001). Evaluating the Regional
Director’s position from the deferential perspective required in this proceeding, the Court
finds that the Petitioner’s position is not fatally flawed.
Respondent’s arguments simply quarrel with the facts, asserting that the stated
reasons for the decision to fire the nurses were the real ones and pointing out that a
failure to follow the stated transfusion policies could endanger a patient. Whatever the
merits of those arguments, they can be raised before the ALJ and the Court of Appeals if
necessary. At this point, the Court finds “reasonable cause to believe that the respondent
ha[s] committed unfair labor practices under section 8(a)(1) and 8(a)(3) of the Act.” Seeler
v. Trading Port, Inc., 517 F.2d 33, 36 (2d Cir. 1975). Even when “there are disputed
issues of fact in the case, the Regional Director should be given the benefit of the doubt[.]”
Id. at 36-37. The Court therefore finds that the first part of the test has been met.
C.

Just and Proper Injunctive Relief

Respondent argues that the Court is to “apply the same general equitable principles
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that ordinarily apply in determining the propriety of injunctive relief, including irreparable
harm, balance of equities, and public interest.” Citing Ahearn v. House of Good
Samaritan, 884 F.Supp. 654, 661 (N.D.N.Y. 1995). Using these standard, Respondent
argues, the Court must deny relief because “there is no threat of remedial failure” and the
balance of the equities weigh against granting an injunction. Of particular concern,
Respondent insists, is the threat to public safety and the welfare of CMC patients that
would come from reinstating two nurses found to have endangered a patient during a
blood transfusion. In any case, a union organizer still is in place at CMC, and any alleged
threat to the union organizing campaign is vastly overstated. Finally, the Petitioner waited
several months to seek equitable relief after the nurses’ termination, and this action
undermines any claim that a speedy decision on reinstatement is necessary.
The Respondent misstates the law in this area. The Second Circuit Court of
Appeals recently explained that, while “the ‘just and proper’” element “of the 10(j)
injunctive relief standard for labor disputes incorporates elements of the four-part standard
for preliminary injunctions that applies in other contexts,” courts evaluating a Section 10(j)
request do not need to apply that standard. Kreisberg, 732 F.3d at 141. In reaching this
conclusion, the court noted that, unlike a Section 10(j) proceeding , an ordinary
“preliminary injunction involves no preliminary determination by a government enforcement
agency, is resolved on the merits by the district court, and is issued pursuant to the court’s
equitable power rather than a specific statute.” Id. Under Section 10(j), however,
“petitions come from a unique statutory scheme that requires (1) deference to the NLRB,
which resolves the underlying unfair labor practice complaint on the merits and makes an
initial determination, prior to the filing of a petition, to file such a complaint, as well as (2)
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speedy resolution to preserve the status quo in a labor dispute[.]” Id. The Court will thus
apply the “just and proper” standard as articulated by courts in reference to Section 10(j),
rather than to the general standards courts use in deciding on equitable relief. Under that
standard, “injunctive relief under § 10(j) is just and proper when it is necessary to prevent
irreparable harm or to preserve the status quo.” Hoffman, 247 F.3d at 368. The proper
“‘test for whether harm is irreparable in the context of § 10(j) . . . cases is whether the
employees’ collective bargaining rights may be undermined by the . . . [asserted] unfair
labor practices and whether any further delay may impair or undermine such bargaining in
the future.’” Kreisberg, 732 F.3d at 142 (quoting Hoffman, 247 F.3d at 369). The status
quo that should be preserved “is that which was in existence before the unfair labor
practice occurred.” Id. at 143 (internal quotations omitted).
The Second part of the test is also satisfied. Here, the alleged unfair labor practice
involves firing employees for their participation in the organization drive. Firing employees
for wanting to join a union surely undermines collective bargaining rights and has the
effect of discouraging future organizing. Petitioner has provided evidence, cited above, to
this effect. Multiple affidavits from workers at Cayuga Medical Center indicate that the
firings have created a fearfulness among nurses that any connection with the Union could
cause them to be fired. Attendance at meetings and participation in unionizing events has
been reduced, and the affiants indicate that the reduction is directly related to fear for
employment. In this context, “the rights of improperly discharged employees take priority
over the rights of those hired to replace them.” Paulsen, 773 F.3d at 469. Since “the m ain
focus of a § 10(j) analysis should be on harm to organizational efforts, . . . time [is] of the
essence in reinstating fired employees.” Id. A delay in reinstatement “is a significant
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concern because the absence of employees who support a union can quickly extinguish
organizational efforts and reinforce fears within the workforce concerning the
consequences of supporting union activity.” Id. Thus, an injunction is just and proper
under the circumstances.3
The Court will therefore grant the Section 10(j) injunction as requested.
3

Respondent contends that the delay between the firing and filing of the instant
petition demonstrate that such relief is unnecessary. The cases Respondent cites in
support of this proposition are inapposite and unpersuasive. In Seeler v. H.G. Page &
Sons, Inc., 540 F.Supp. 77 (S.D.N.Y. 1982), for instance, the court denied a request for a
10(j) injunction because of the Regional Director’s four-month delay in seeking it. The
court found that injunction relief is unavailable “where the Board itself does not treat the
ongoing violations with urgency.” Id. at 79. The injunction sought in Seeler largely sought
reinstatement of employees who had struck to protest unfair labor practices like firing a
union organizer and threatening to shut the company down if the union won a collective
bargaining election. Id. at 78. By the time the Board sought the injunction, however,
“most, if not all, of the striking employees ha[d] been offered the opportunity to return to
work.” Id. The court found that these facts, in addition to the delay in filing, belied the
Board’s argument that an injunction was necessary to prevent “erosion” of the union’s
position. Id. at 79. Congress enacted Section 10(j), after all, “to prevent violators of the
Act from accomplishing ‘their unlawful objective’ pending adjudication by an administrative
law judge.” Id. As explained above, the alleged unlawful firings, undertaken to slow the
organizing drive, have not been rectified and have served to promote an unlawful objective
of quieting organization efforts while decision by an ALJ is pending. Silverman v. Local 3,
Intern. Broth. of Elec. Workers, AFL-CIO, 634 F.Supp. 671 (S.D.N.Y. 1986), involved
section 10(l), not section 10(j) of the NLRA; the case involved a union engaging in a
secondary boycott. Id. at 672. Moreover, at the time the Board sought an injunction, the
Board had not filed a complaint against the union and had not provided the court with an
administrative record. Id. Here, the case involves a different section of the statute, an
administrative record has been created at least in part, and, as the Court has f ound,
irreparable harm would come to the Union from failing to issue a temporary injunction.
The delay complained of by the court in Moore-Duncan v .Traction Wholesale Center Co.,
Inc., 1997 WL 792909 (E.D.Pa. Dec. 19, 1997), at six months, was months longer than the
delay in this case. In any case, the Court finds that an injunction here fits the statutory
purpose as described in that case: “because of the protracted nature of the administrative
proceedings, absent the relief provided for in 10(j), a company could accomplish its goal of
preventing unionization through the use of unlawful means before a final order restraining
such activity. This would, of course, render the order ineffective for all practical purposes.”
Id. at *1.
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IV.

CONCLUSION
For the reasons stated above, the Petitioner’s motion for preliminary injunction, dkt.

# 1, is hereby GRANTED, as follows:
1.

The Respondent, its officers, representatives, agents, servants, employees,
attorneys, successors and assigns, and all persons acting in concert or
participation with them, pending final disposition of the matters involved here
pending before the National Labor Relations Board, are hereby ORDERED
to:
a.

Within five (5) days of the date of this Order, the Respondent is
hereby ordered to offer reinstatement to Anne Marshall to her former
position with her seniority and all other rights and privileges;

b.

Within five (5) days of the date of this order, the Respondent is hereby
ordered to offer reinstatement to Loran Lamb to her former position
with her seniority and all other rights and privileges;

c.

Post copies of this Order at the Respondent’s Ithaca, New York facility
where notices to employees are customarily posted, those postings to
be maintained during the pendency of the Board’s administrative
proceedings free from all obstructions and defacements; all
employees shall have free and unrestricted access to said notices;

d.

Grant to agents of the Board reasonable access to Respondent’s
Ithaca, New York facility to monitor compliance with this posting
requirement;

e.

Within seven (7) days of the date of this order, hold a mandatory
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meeting scheduled to ensure the widest possible attendance, during
work time, and have a responsible official for Respondent, in the
presence of a Board agent, or at Respondent’s option, a Board agent,
in the presence of the Respondent’s official, read the Conclusion to
this Order and notice to employees; and
f.

Within twenty-one (21) days of the issuance of this Order, file with the
District Court and submit a copy to the Regional Director of Region
Three of the Board, a sworn affidavit from a responsible official of
Respondent setting forth, with specificity, the manner in which
Respondent has complied with the terms of this decree, including how
it has posted the documents required by the Court’s decree.

The Petitioner’s motion to determine the Petition on the basis of the administrative record,
dkt. # 2, is hereby GRANTED. The Petitioner’s motion to shorten time and for an
expedited hearing, dkt. # 3, is hereby DENIED as moot.

IT IS SO ORDERED
DATED:March 22, 2017

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