14-86-cv
Murphy v. Hogan Transports, Inc.

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
14th day of October, two thousand fourteen.

Present:    ROSEMARY S. POOLER,
            REENA RAGGI,
            PETER W. HALL,
                  Circuit Judges.
_____________________________________________________

PAUL J. MURPHY, Acting Regional Director for the Third
Region of the National Labor Relations Board, for and on
behalf of the NATIONAL LABOR RELATIONS BOARD,

                                   Petitioner-Appellant,

                           v.                                                 14-86-cv

HOGAN TRANSPORTS, INC.,

                        Respondent-Appellee.
_____________________________________________________

Appearing for Appellant:           Sandra M. Solowiej, Senior Attorney (Richard F. Griffin, Jr.,
                                   General Counsel, Jennifer Abruzzo, Deputy General Counsel,
                                   Barry J. Kearney, Associate General Counsel, Jayme L. Sophir,
                                   Deputy Associate General Counsel, Eliner L. Merberg, Assistant
                                   General Counsel, Laura T. Vasquez, Deputy Assistant General
                                   Counsel, on the brief), National Labor Relations Board,
                                   Washington, DC.

Appearing for Appellee:            Jedd Mendelson, Littler Mendelson, PC, Newark, NJ.

        Appeal from the United States District Court for the Northern District of New York
(Sharpe, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is VACATED IN
PART and REMANDED.

        Petitioner-appellant Paul Murphy, the Acting Director for the Third Region of the
National Labor Relations Board (“the Director”), appeals from the November 22, 2013 order of
the United States District Court for the Northern District of New York (Sharpe, J.), denying in
part and granting in part the Director’s petition for temporary injunctive relief pursuant to Section
10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j). On appeal, the Director argues that
the district court erred in determining “just and proper” temporary relief under this provision,
specifically by (1) denying the Director’s request for an interim bargaining order pending the
outcome of administrative proceedings before the National Labor Relations Board, and (2)
setting out procedures for awarding backpay to an employee discharged by respondent-appellee
Hogan Transports, Inc. (“Hogan”). We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

         “In this Circuit, in order to issue a § 10(j) injunction, the district court must apply a two-
prong test. First, the court must find reasonable cause to believe that unfair labor practices have
been committed. Second, the court must find that the requested relief is just and proper.”
Hoffman ex rel. NLRB v. Inn Credible Caterers, Ltd., 247 F.3d 360, 364–65 (2d Cir. 2001). In
this appeal, only the second prong is at issue. The district court found “reasonable cause to
believe that unfair labor practices have been committed [by Hogan],” id. at 365, based on the
contentions in the Director’s petition, which were “largely unchallenged” in the proceedings
below. Neither party has argued on appeal that this finding was erroneous. Therefore, we take the
district court’s “reasonable cause” determination as given in assessing its “just and proper”
analysis.

        “In this Circuit, injunctive relief under § 10(j) is just and proper when it is necessary to
prevent irreparable harm or to preserve the status quo.” Id. at 368. “We review the district court’s
determination of whether relief is just and proper for abuse of discretion, bearing in mind . . . that
a judge’s discretion is not boundless and must be exercised within the applicable rules of law or
equity.” Id. at 364 (internal citation and quotation marks omitted). A district court abuses its
discretion “when (1) its decision rests on an error of law (such as application of the wrong legal
principle) or a clearly erroneous factual finding, or (2) its decision – though not necessarily the
product of a legal error or a clearly erroneous factual finding – cannot be located within the range
of permissible decisions.” In re Holocaust Victim Assets Litig., 424 F.3d 158, 165 (2d Cir. 2005)
(internal quotation marks omitted).

         Although “the issuance of a bargaining order by a district court . . . is, undoubtedly, a
serious measure which should not be undertaken whenever a claim of unfair labor practices is
made,” we have held “that when the Regional Director makes a showing, based on authorization
cards, that the union at one point had a clear majority and that the employer then engaged in such
egregious and coercive unfair labor practices as to make a fair election virtually impossible, the
district court should issue a bargaining order under § 10(j).” Seeler v. Trading Port, Inc., 517
F.2d 33, 40 (2d Cir. 1975) (emphasis added).

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        Here, the district court summarily concluded that an interim bargaining order “goes too
far, and is unnecessary to prevent irreparable harm” because “[t]he relief that the court imposes
sufficiently and equitably addresses the issues raised herein – including making a fair election
possible – and is just and proper.” This abbreviated analysis, even when viewed in the context of
the preceding hearing, leaves us unable to assess whether the district court actually grappled with
the seriousness of the violations it found “reasonable cause to believe . . . ha[d] been committed.”
Hoffman, 247 F.3d at 365. Therefore we vacate the district court’s denial of the interim
bargaining order and remand for further explanation of this decision.

        The district court found reasonable cause to believe that Hogan, inter alia, (1) discharged
an employee because of his support for the union; (2) threatened employees with job loss if they
selected the union as their bargaining representative; and (3) promised and granted a wage
increase in order to dissuade employees from supporting the union. In the context of final relief
awarded by the NLRB administrative process, we have previously categorized all three of these
unfair labor practices as “hallmark” violations. See NLRB v. Jamaica Towing, Inc., 632 F.2d 208,
212–13 (2d Cir. 1980). While “the presence of hallmark violations does not automatically call for
a bargaining order” in an NLRB administrative proceeding, NLRB v. J. Coty Messenger Serv.,
Inc., 763 F.2d 92, 99 (2d Cir. 1985), we have recognized such violations are “highly coercive” in
the absence of mitigating factors such as the specific nature of the misconduct, the passage of
time, or employee turnover, id.; see also NLRB v. Windsor Indus., 730 F.2d 860, 867 (2d Cir.
1984) (“[T]he lapse of time, employee turnover[,] and other significant factors must be
examined.”). Given its finding of several highly coercive unfair labor practices, and the absence
of any discussion of any mitigating circumstances, the district court’s analysis leaves unanswered
the question of why an interim bargaining order is inappropriate here.

         At most, the district court’s analysis suggests it believed its chosen remedies were
sufficient to combat the “hallmark” violations it found reasonable cause to believe had occurred,
and ensure a fair election. Yet, in the absence of more detailed reasoning, we also have concerns
about this conclusion. “[S]ection 10(j) was intended as a means of preserving or restoring the
status quo as it existed before the onset of unfair labor practices.” Seeler, 517 F.2d at 38
(emphasis added). We have previously cautioned that in the context of serious violations, cease
and desist orders, standing alone, are insufficient to restore the pre-violation status quo. See id. at
37–38 (“If an employer faced with a union demand for recognition based on a card majority may
engage in an extensive campaign of serious and pervasive unfair labor practices, resulting in the
union’s losing an election, and is then merely enjoined from repeating those already successful
violations until final Board action is taken, the Board’s adjudicatory machinery may well be
rendered totally ineffective.”). To be sure, the district court afforded some affirmative relief,
reinstating on an interim basis an employee purportedly discharged for his union support. Yet
this interim relief leaves entirely unaddressed the two other serious violations the district court
found reasonable cause to believe had occurred here. In light of this unexplained disconnect
between the harm found by the district court and the interim remedy imposed, we believe further
explication on the “just and proper” relief here is necessary. Without additional explanation,
these remedies appear inadequate to restore the pre-violation status quo, “freez[ing] the present
situation,” rather than “re-establish[ing] the conditions as they existed before the employer’s
unlawful campaign.” Id. at 38 (internal quotation marks omitted).

       On remand, the district court is free to revise its decision or again conclude that an

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interim bargaining order is not “just and proper” relief pursuant to Section 10(j). However, in
order to appropriately exercise its discretion, the district court should explain, beyond simply
stating that an interim bargaining order “goes too far,” why such relief is warranted or
unwarranted in light of the serious violations it found, and the apparent disconnect between these
violations and the other interim relief afforded. In addition, “[o]n remand, the district court
should consider not only the transcript of the hearing which was before the court at the time of its
initial decision, but also the findings which have since been made by the administrative law
judge.” Id. at 40 n.11. The district court may also consider the time the NLRB might take to
resolve this matter, and it may seek reasonable assurances of timely disposition.

         In addition, we vacate the portion of the district court’s order requiring the ALJ to retain
jurisdiction over this case for the purpose of determining the backpay sum to a discharged
employee, and ordering Hogan to escrow and remit backpay amounts to the Director. In this
portion of the order, the district court awarded an individual employee a portion of his final relief
for the allegedly unfair labor practices committed by Hogan. In so doing, “[t]he district court
misidentifie[d] the proper plaintiff in § 10(j) cases as the individual employees rather than the
Regional Director.” Hoffman, 247 F.3d at 369; see also Seeler, 517 F.2d at 40 (“[S]ection 10(j)
should be applied in the public interest and not in vindication of purely private rights, so as to
further the policies of the Act.”) (internal quotation marks omitted). Hogan argues that by
providing a means of obtaining backpay for a discharged employee, the district court was
attempting to increase the employee’s willingness to return to work, and thus mitigate the
coercive effects of his discharge. Yet neither the district court’s opinion nor anything else in the
record provides support for this inference. Moreover, even if this were true, the provision of final
relief in the form of backpay exceeds the district court’s authority under Section 10(j), which
only provides a district court “jurisdiction to grant to the Board such temporary relief or
restraining order as it deems just and proper.” 29 U.S.C. § 160(j) (emphasis added).

         In light of the district court’s sparse explanation for the denial of the interim bargaining
order, the seeming seriousness of the violations at issue, and the apparent disconnect between the
district court’s chosen remedies and these violations, we believe further explanation is necessary
regarding why an interim bargaining order is not “just and proper” relief pursuant to Section
10(j). Therefore, we vacate the portion of the district court’s order denying this request and
remand for further consideration. In addition, we vacate the portion of the district court’s order
establishing procedures for an award of backpay to a discharged employee, as the district court
inappropriately awarded an individual employee a portion of his final relief for the unfair labor
practices at issue. We have considered the remainder of the parties’ arguments and find them to
be without merit. Accordingly, the judgment of the district court hereby is VACATED IN PART
and this case is REMANDED for further proceedings consistent with this order.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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