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PASCARELL EX REL. NLRB v. ORIT CORPORATION/SEA JET

May 31, 1988

WILLIAM A. PASCARELL, Regional Director of Region 22 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner,
v.
ORIT CORPORATION/SEA JET TRUCKING and APA WAREHOUSES, INC., Single and Joint Employers d/b/a Gitano Distribution Center, Respondent



The opinion of the court was delivered by: WOLIN

 This matter is currently before the Court on a petition filed by the Regional Director of Region 22 of the National Labor Relations Board (the "NLRB"), pursuant to § 10(j) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(j), for a temporary injunction pending the final disposition of this action. The filing of this petition follows the issuance of an unfair labor practice complaint pursuant to § 10(b) of the National Labor Relations Act, upon charges filed by United Automobile, Aerospace & Agriculture Implement Workers of America, AFL-CIO (the "Union") on December 7, 1987, alleging that Orit Corporation/Sea Jet Trucking and APA Warehouses, Inc., single and joint employer d/b/a Gitano Distribution Center (respondent) has engaged in, and is engaging in various unfair labor practices within the meaning of § 8(a)(1) and (3) of the National Labor Relations Act. In particular, the complaints alleges that employees of respondent have engaged in an unfair labor practice strike to protest respondent's discriminatory discipline and discharge of two employees, various independent violations of § 8(a)(1) of the National Labor Relations Act, respondents' failure to provide requested information relevant to the Union, and its failure to bargain with the Union, the certified collective bargaining representative of its employees.

 Subsequent to the filing of the complaint, the parties entered into a settlement agreement on March 29, 1988 in relation to the discipline and discharge allegations as well as the independent violations of § 8(a)(1). The settlement agreement was entered into without prejudice to either side and clearly indicated that respondent did not admit that it had violated the National Labor Relations Act, as amended, by entering into such agreement. (See, Exhibit A attached to Pollack Affidavit.)

 Thereafter, on April 14, 1988 at a hearing before the Honorable Harold B. Lawrence, A.L.J., the respondent, pursuant to its settlement agreement, withdrew its denials of all but the reinstatement allegations contained in the complaint *fn1" and the parties entered into various factual stipulations. Judge Lawrence ordered briefs to be submitted by May 17, 1988.

 On May 9, 1988 the NLRB authorized the petitioner to seek injunctive relief pursuant to § 10(j). This petition followed.

 DISCUSSION

 On a petition for injunctive relief pursuant to § 10(j) of the National Labor Relations Act, a federal court must determine whether "reasonable cause" exists to believe an unfair labor practice has occurred and whether the specific relief sought is "just and proper". Kobell v. Suburban Lines, Inc., 731 F.2d 1076 (3d Cir. 1984). Unlike the ordinary requisites for a preliminary injunction, there is no need to show irreparable harm and a likelihood of success on the merits. Id. Indeed, the Third Circuit has stated that the necessary standard on an application for injunctive relief pursuant to § 10(j) involves a relatively "low threshold of proof". Eisenberger v. Wellington Hall Nursing Home, 651 F.2d 902, 905 (3d Cir. 1981). See also Kobell, supra, 731 F.2d at 1084 (standard is "relatively insubstantial").

 In determining whether "reasonable cause" exists to believe that an unfair labor practice has occurred, a district court should be mindful that it may not act as though it has general jurisdiction over the nation's labor laws and may not decide whether or not to issue relief based upon its own belief as to whether an unfair labor practice has been committed. Kobell, 731 F.2d at 1083. Moreover, the district court "need not be satisfied with the 'validity of the legal theory upon which [the Regional Director] predicated his charges,' so long as the legal theory proffered is 'substantial and not frivolous'. . . ." Id. at 1084, quoting from Hirsch v. Building and Construction Trades Council, 530 F.2d 298 (3d Cir. 1976).

 The determination that the relief sought is "just and proper" requires a finding by the court that "it is in the public interest to grant the injunction, so as to effectuate the policies of the National Labor Relations Act or to fulfill the remedial function of the Board." Eisenberg v. Lenape Properties, Inc., 781 F.2d 999, 1003 (3d Cir. 1986) (citations omitted); accord, Kobell v. Menard Fiberglass Products, Inc., 678 F. Supp. 1155, 1164 (W.D. Pa. 1988). Moreover, the Third Circuit has instructed district courts to "discuss and determine whether the failure to grant interim injunctive relief would be likely to prevent the Board, acting with reasonable expedition, from effectively exercising its ultimate remedial powers." Kobell, 731 F.2d at 1091-92.

 Petitioner contends that reasonable cause to believe that the National Labor Relations Act has been violated and that § 10(j) injunctive relief is just and proper can be found by a review of the administrative record compiled on April 14, 1988. In contrast, respondent asserts that neither "reasonable cause" to believe that an unfair labor practice has occurred nor proof that imposition of an injunction by this Court would be "just and proper" has been shown by petitioner or evidenced by the administrative record. Because as set forth below this Court is more persuaded by the arguments of petitioner, interim injunctive relief shall be granted.

 While a review of the administrative record clearly indicates that respondent has preserved its non-admissions in regard to the alleged conduct constituting violations of § 8(a)(1) and (3), respondent has in fact stipulated before the administrative law judge and before this Court that an unfair labor practice strike commenced on November 8, 1987. *fn2" Moreover, the parties agree that on December 4, 1987 respondent was advised of the Union's decision to "terminate, unconditionally, the strike at Orit Corporation's Edison, New Jersey facility" and to have its members return to work on December 7, 1987. It is respondent's alleged conduct thereafter that the parties currently debate.

 Upon receipt of an unconditional request for reinstatement, an employer is required to reinstate unfair labor practice strikers to their former positions of employment or if such jobs no longer exist, to substantially equivalent positions. Pecheur Lozenge Co., 98 N.L.R.B. 496, 498 (1952) enf. as modified 209 F.2d 393 (2d Cir. 1953), cert. denied, 347 U.S. 953, 98 L. Ed. 1099, 74 S. Ct. 678 (1954); Levanthal v. Car-Riv. Corp., 96 CRRM 2899 (E.D. Pa. 1977). Further, the burden is on the employer to offer immediate and unconditional reinstatement even if the employer has hired permanent replacements, and even if those replacements must be discharged to make room for returning strikers. Atlas Metal Parts, Inc., 252 N.L.R.B. 205 (1980); see Mastro Plastics v. NLRB, 350 U.S. 270, 278, 100 L. Ed. 309, 76 S. Ct. 349 (1956); NLRB v. Cast Optics Corp., 458 F.2d 398, 407 (3d Cir. 1972), cert. denied, 409 U.S. 850, 34 L. Ed. 2d 92, 93 S. Ct. 58; NLRB v. Clearfield Cheese Co., 213 F.2d 70 (3d Cir. 1954).

 On December 7, 1987 approximately 90 former striking employees arrived at respondent's warehouse where they were greeted by respondent's manager, Mr. Barry Becken. Becken took the names of all employees who were present and proceeded to begin the process of reinstating such employees to the workforce. In total, however, only 27 employees were offered immediate reinstatement. The remaining individuals were advised to await further contact from respondent. *fn3"

 While it appears that 16 additional employees were offered reinstatement within the next four work days, respondent still had not discharged any of its striker replacements, nor offered several of the ...


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