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HIRSCH EX REL. NLRB v. CORBAN CORPS.

December 5, 1996

PETER W. HIRSCH, Regional Director of the Fourth Region of the NATIONAL LABOR RELATIONS BOARD for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
CORBAN CORPORATIONS, INC., d/b/a ENCOR COATINGS, INC., Respondent.



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 DECEMBER 5, 1996

 Before the Court is a petition by Peter W. Hirsch, Regional Director of the Fourth Region of the National Labor Relations Board ("Petitioner" or "Board"), for interim injunctive relief under section 10(j) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(j). The Board seeks this relief pending its adjudication of an unfair labor practices complaint filed by Local 365, International Union of United Automobile, Aerospace and Agricultural Implementation Workers of America (the "Union") against Respondent Corban Corporation, Inc. d/b/a Encor Coatings, Inc. ("Respondent" or "Encor") for alleged violations of § 8(a)(1) and (3) of the NLRA. *fn1" Specifically, Petitioner asks this Court to order Encor to reinstate its former employee Jeremiah Mahoney ("Mahoney"), whom it discharged on March 18, 1996, and to rescind the disciplinary measures imposed on him, pending the Board's final disposition of the Union's complaint regarding Mahoney's termination.

 This Court heard evidence regarding the Board's petition at a show cause hearing on October 10, 17 and 18, 1996. *fn2" While all of the testimony and exhibits presented by both parties inform the decision we announce today, a comprehensive recitation of the record is not necessary to explain the grounds for our ruling. Further, a § 10(j) petition does not require this Court to make formal findings of fact. Hoeber v. KNZ Const., Inc., 879 F. Supp. 451, 455 (E.D.Pa. 1995). We therefore begin by articulating the legal standards governing this petition. After identifying these standards, we then analyze the relevant aspects of the factual record in light of them, and explain why the Board's petition must be denied.

 DISCUSSION

 I. Standard for Granting a Section 10(j) Injunction

 The standards governing the Board's petition are well-settled. Interim injunctive relief may be granted under § 10(j) without the showing of irreparable harm and likelihood of success on the merits ordinarily required for preliminary injunctive relief. Kobell v. Suburban Lines, Inc., 731 F.2d 1076, 1078 (3d Cir. 1984). Rather, in evaluating whether such relief is appropriate here, we must determine whether (1) there is "reasonable cause" to believe that an unfair labor practice has occurred and (2) whether an injunction would be "just and proper." Pascarell v. Vibra Screw Inc., 904 F.2d 874, 877 (3d Cir. 1990).

 Under the first prong of this test, Petitioner has the "relatively insubstantial burden," Suburban Lines, 731 F.2d at 1084, of demonstrating that there is reasonable support for its position that an unfair labor practice has occurred. Vibra Screw, 904 F.2d at 882; Hoeber, 879 F. Supp. at 455. The inquiry under this prong is twofold. First, we must find that the Board's legal theory is "substantial and not frivolous." Suburban Lines, 731 F.2d at 1084. Then, viewing the facts in the light most favorable to the Board and without resolving credibility issues raised by the evidence, we must find sufficient support for its proffered theory. Id. ; KMZ Corp., 879 F. Supp. at 455; Hirsch v. Konig, 895 F. Supp. 688, 692 (D.N.J. 1995).

 If there is reasonable cause to believe that an unfair labor practice has occurred, we then ask whether imposition of the interim relief requested would be "just and proper." Section 10(j) injunctions are intended to serve the public interest by effectuating the NLRA's policies and fulfilling the Board's remedial function. Eisenberg v. Wellington Hall, 651 F.2d 902, 907 (3d Cir. 1981); see also KNZ Const., 879 F. Supp. at 455 (section 10(j) "is not meant to vindicate the private rights of employees"). Thus, our Court of Appeals has held that

 
it is just and proper to issue a § 10(j) injunction when the nature of the alleged unfair labor practices are likely to jeopardize the integrity of the bargaining process and thereby make it impossible or not feasible to restore or preserve the status quo pending litigation.

 Vibra Screw, 904 F.2d at 878. *fn3" An injunction should issue where, given "the passage of time reasonably necessary to adjudicate the case on its merits ...[,] the failure to grant such relief might dissipate the effective exercise of [the Board's ultimate remedial] power." Suburban Lines, 731 F.2d at 1091; see also Konig, 895 F. Supp. at 692-93; KMZ Corp., 879 F. Supp. at 455. The "critical determination" is therefore "whether, absent an injunction, the Board's ability to facilitate peaceful labor negotiation will be impaired." Vibra Screw, 904 F.2d at 879.

 We now analyze the record in this case in light of ...


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