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Murphy v. NSL Country Gardens LLC

United States District Court, D. Massachusetts

May 10, 2019

PAUL J. MURPHY, Acting Regional Director, Region 01, National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD
v.
NSL COUNTRY GARDENS, LLC

          MEMORANDUM AND ORDER ON PETITIONER'S PETITION FOR TEMPORARY INJUNCTION UNDER SECTION 10(j) OF NATIONAL LABOR RELATIONS ACT

          Richard G. Stearns, United States District Judge.

         The National Labor Relations Board (NLRB or Board) brought this petition seeking a preliminary injunction pursuant to section 10(j) (29 U.S.C. § 160(j)) of the National Labor Relations Act (NLRA). The NLRB asks the court to compel NSL Country Gardens, LLC (NSL), to reinstate two members of the New England Healthcare Employees Union 1199, who also served as Union delegates. The NLRB claims that these former employees were discharged in retaliation for their union activities and that NSL's “for cause” justification for their firing is pretextual. The NLRB further asks the court to reinstate the collective bargaining agreement (CBA) from which NSL withdrew its recognition despite “continued majority employee support.” See Reply at 4; Pet. at 11. The motion for injunctive relief is before the court based on an administrative record that closed on April 26, 2019.[1] See Dkt # 20. The court heard argument from the parties on May 8, 2019.

         The factual background as gleaned from the record is as follows. NSL operates a residential healthcare facility in Swansea, Massachusetts. On July 3, 2016, NSL recognized the Union as the exclusive collective bargaining agent for the following two groups of employees, referred to as Unit A and Unit B. Unit A consisted of

[a]ll full-time and regular part-time Registered Nurses; excluding all other Employees, Director of Nursing, Supervisor of Nursing, Assistant Supervisors of Nursing, Food Service Supervisor, First Cook, Maintenance Supervisor, Housekeeping/Laundry Working Supervisor, Social Worker, other Professional Employees, Managerial Employees, Temporary Employees, Guards and Supervisors as defined in the Act.

         Unit B was comprised of

[a]ll full-time and regular part-time Licensed Practical Nurses, Nurses' Aides, Orderlies, Technical Employees, Kitchen Employees, Housekeeping Employees, Maintenance Employees, and Laundry Employees; excluding all other Employees, Registered Nurses, Director of Nursing, Supervisor of Nursing, Assistant Supervisors of Nursing, Food Service Supervisor, First Cook, Maintenance Supervisor, Housekeeping/Laundry Working Supervisor, Social Worker, Professional Employees, Managerial Employees, Temporary Employees, Guards and Supervisors as defined in the Act.

         As negotiated, the CBA was to be in effect from November 1, 2016, through October 31, 2018.

         On July 6, 2018, NSL withdrew from the CBA after an apparent majority of the nursing home's employees signed a petition demanding that the Union be ousted “immediately.” On July 9, 2018, NSL suspended Union delegate-employee Stephanie Sullivan, and, on July 11, 2018, discharged her, allegedly for leaving her work area on an unassigned break to solicit another employee on behalf of the Union. GC-SS1; Tr. 707. On July 16, 2018, NSL suspended delegate-employee Karen Hirst, and three days later terminated her for allegedly failing to report a patient-on-patient altercation. Tr. at 831; GC 61(e)-(f). After an investigation, the NLRB charged NSL with terminating Sullivan and Hirst for their steadfastness in support of the Union and as a warning to other employees who might be similarly inclined.

         The issues presented by the Petition are: (1) whether there is reasonable cause to believe that NSL violated the NLRA when it withdrew recognition from the Union and discharged Sullivan and Hirst; and (2) whether interim injunctive relief is “just and proper.” Pye on Behalf of N.L.R.B. v. Sullivan Bros. Printers, Inc., 38 F.3d 58, 63 (1st Cir. 1994). Section 10(j) of the NLRA provides that a Regional Director may petition a federal district court for interim injunctive relief pending the NLRB's final resolution of an alleged unfair labor practice. See McDermott ex rel. NLRB v. Ampersand Publ'g, LLC, 593 F.3d 950, 957 (9th Cir. 2010). In considering a petition for interim relief under section 10(j), a district court's role is narrowly circumscribed. It “must limit its inquiry to whether (1) the Board has shown reasonable cause to believe that the defendant has committed the unlawful labor practices alleged and (2) whether injunctive relief is, in the words of the statute, ‘just and proper.'” Sullivan Bros. Printers, Inc., 38 F.3d at 63. “In assessing whether the Board has shown reasonable cause, the district court need only find that the Board's position is ‘fairly supported by the evidence.'” Id., quoting Asseo v. Centro Medico del Turabo, 900 F.2d 445, 450 (1st Cir. 1990) (noting that the issue is whether the NLRB's theory of a violation is substantial and not frivolous). The Board need not at the injunctive stage definitively prove that the alleged act constitutes an unfair labor practice; rather, the prayer should be granted unless the NLRB's legal or factual theories are “fatally flawed.” Silverman ex rel. NLRB v. Major League Baseball Player Relations, 67 F.3d 1054, 1059 (2d Cir. 1995). The court should not attempt to resolve contested issues of fact, and rather defer to the Board's characterization of the facts so long as it is “within the range of rationality.” Rivera-Vega v. ConAgra, Inc., 70 F.3d 153, 158 (1st Cir. 1995).

         At the second step of the inquiry, in deciding whether to grant injunctive relief,

the Board faces a much higher hurdle, for here the district court must examine “the whole panoply of discretionary issues with respect to granting preliminary relief.” Thus, the district court must apply the familiar, four-part test for granting preliminary relief. Under this test, the Board must demonstrate:
(1) A likelihood of success on the merits; (2) The potential for irreparable injury in the absence of relief; (3) That such injury outweighs any harm preliminary relief would inflict on the defendant; and (4) That preliminary relief is in the public interest.
When . . . the interim relief sought by the Board “is essentially the final relief sought, the likelihood of success should be strong.”

Sullivan Bros. Printers, Inc., 38 F.3d at 63 (citations omitted and emphasis in original). Courts in this Circuit have customarily recognized the unlawful withdrawal of union recognition and the retaliatory termination of union employees as unfair labor practices for which §10(j) interim injunctive relief is appropriate. See, e.g., Centro Medico, 900 F.2d at 454-455; Asseo v. Pan Am. Grain Co., 805 F.2d 23, at 26-27; Pye ex rel NLRB v. YWCA of Western Massachusetts, 419 F.Supp.2d 20, ...


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