16-3877 (L)
Paulsen v. PrimeFlight Aviation Servs., 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 TO 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 13th day of December, two thousand seventeen.

Present:
            ROBERT A. KATZMANN,
                  Chief Judge,
            RAYMOND J. LOHIER, JR.,
            CHRISTOPHER F. DRONEY,
                  Circuit Judges.
_____________________________________

JAMES G. PAULSEN, Regional Director of
Region 29 of the National Labor Relations
Board, for and on behalf of the National
Labor Relations Board,

          Petitioner-Appellee-Cross-Appellant,

                  v.                                                       Nos. 16-3877, 17-8

PRIMEFLIGHT AVIATION SERVICES, INC.,

    Respondent-Appellant-Cross-Appellee.*
_____________________________________

For Petitioner-Appellee-Cross-Appellant:           JONATHAN M. PSOTKA, Attorney (Richard F.
                                                   Griffin, Jr., General Counsel; Jennifer Abruzzo,
                                                   Deputy General Counsel; Barry J. Kearney,

*
    The Clerk of Court is respectfully directed to amend the caption as above.


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                                              Associate General Counsel; Jayme L. Sophir,
                                              Deputy Associate General Counsel; Elinor L.
                                              Merberg, Assistant General Counsel; Laura T.
                                              Vazquez, Deputy Assistant General Counsel, on the
                                              brief),  National   Labor    Relations    Board,
                                              Washington, DC.

For Respondent-Appellant-Cross-               CHRISTOPHER C. MURRAY (William Franklin
Appellee:                                     Birchfield, on the brief), Ogletree, Deakins, Nash,
                                              Smoak & Stewart, P.C., Indianapolis, IN; New
                                              York, NY.

For Amicus Curiae Service                     BRENT GARREN, General Counsel, Service
Employees International Union,                Employees International Union, Local 32BJ, New
Local 32BJ:                                   York, NY.


       Appeal from an order of the United States District Court for the Eastern District of New

York (Cogan, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED in part, REVERSED in part, and

REMANDED for further proceedings.

       National Labor Relations Board (“NLRB”) Regional Director James G. Paulsen

petitioned for temporary injunctive relief under § 10(j) of the National Labor Relations Act

(“NLRA”), 29 U.S.C. § 160(j), directing PrimeFlight Aviation Services, Inc. (“PrimeFlight”) to

recognize and bargain with the Service Employees International Union, Local 32BJ (“SEIU”) as

the representative of PrimeFlight’s employees. On October 24, 2016, the district court (Cogan,

J.) granted the petition in part and issued a preliminary injunction. PrimeFlight appeals from the

issuance of the injunction, and Paulsen cross-appeals, challenging certain provisions included in

or omitted from the injunction. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal. We affirm the issuance of the injunction

and affirm in part and reverse in part the terms of the injunction.


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       “[T]he task of a district court in a section 10(j) proceeding is two-fold, requiring a

determination whether there is reasonable cause to believe that unfair labor practices have been

committed and, if so, whether the requested relief is just and proper.” Kaynard v. Mego Corp.,

633 F.2d 1026, 1030 (2d Cir. 1980) (Friendly, J.) (internal quotation marks omitted). In making

this determination, “[a]ppropriate deference must be shown to the judgment of the NLRB, and a

district court should decline to grant relief only if convinced that the NLRB’s legal or factual

theories are fatally flawed.” Silverman v. Major League Baseball Player Relations Comm., Inc.,

67 F.3d 1054, 1059 (2d Cir. 1995). We review de novo a district court’s determination of

whether there was reasonable cause to believe an unfair labor practice has been committed, and

we review its determination that injunctive relief was just and proper for an abuse of discretion.

Mego Corp., 633 F.2d at 1030. We review any factual findings for clear error. Id.

       PrimeFlight argues that the district court lacked reasonable cause to believe unfair labor

practices have been committed because PrimeFlight, as a contractor providing services to an

airline, is not subject to the NLRA. PrimeFlight is correct that the NLRB and the National

Mediation Board (“NMB”) have, in the past, concluded that contractors like PrimeFlight are not

subject to the NLRA. See, e.g., Air Serv Corp., 33 NMB 272, 272 (2006). More recently,

however, the NLRB and the NMB have concluded that contractors like PrimeFlight and

PrimeFlight itself are subject to the NLRA. See PrimeFlight Aviation Servs., Inc., No.

12-RC-113687, 2015 WL 3814049, at *1 n.1 (N.L.R.B. June 18, 2015); Bags, Inc., 40 NMB

165, 170 (2013); Huntleigh USA Corp., 40 NMB 130, 137–38 (2013); Aero Port Servs., Inc., 40

NMB 139, 143 (2013). PrimeFlight claims that this shift was arbitrary and capricious because the

NLRB failed to properly explain it. See ABM Onsite Servs.-West, Inc. v. NLRB, 849 F.3d 1137,

1146–47 (D.C. Cir. 2017). However, the question of whether the NLRB and NMB’s about-face


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was procedurally sound under the Administrative Procedure Act is not before us. Instead, the

question here is whether Paulsen’s claim that PrimeFlight was subject to the NLRA was “fatally

flawed.” Major League Baseball Player Relations Comm., 67 F.3d at 1059. In light of the

numerous NLRB and NMB precedents supporting Paulsen’s position, we cannot conclude that it

was “fatally flawed.” Id.

       PrimeFlight also argues that the district court lacked reasonable cause because it had not

hired a “substantial and representative complement” of its workforce by the time SEIU

demanded recognition. Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 52 (1987).

To determine whether an employer has hired a “substantial and representative complement” by

the date of a union’s recognition demand, a court looks to

       whether the job classifications designated for the operation were filled or
       substantially filled[,] . . . whether the operation was in normal or substantially
       normal production[,] . . . the size of the complement on that date and the time
       expected to elapse before a substantially larger complement would be at work . . .
       as well as the relative certainty of the employer’s expected expansion.

Id. at 49 (final alteration in original) (internal quotation marks and citations omitted). The district

court made factual findings as to these factors that support the conclusion that PrimeFlight had

hired a substantial and representative complement of employees as of the date of SEIU’s demand

for recognition. PrimeFlight has failed to demonstrate that the district court’s factual findings

were clearly erroneous. Accordingly, we conclude the district court had reasonable cause to

believe PrimeFlight committed an unfair labor practice.

       PrimeFlight also argues that injunctive relief was not just and proper. “[I]njunctive relief

under § 10(j) is just and proper when it is necessary to prevent irreparable harm or to preserve

the status quo.” Hoffman v. Inn Credible Caterers, Ltd., 247 F.3d 360, 368 (2d Cir. 2001). “[T]he

appropriate test for whether harm is irreparable in the context of § 10(j) successorship cases is


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whether the employees’ collective bargaining rights may be undermined by the successor’s

unfair labor practices and whether any further delay may impair or undermine such bargaining in

the future.” Id. at 369. Relying on employee affidavits, the district court concluded that

PrimeFlight’s refusal to recognize and bargain with SEIU has had a chilling effect on employees

exercising their collective bargaining rights. PrimeFlight does not point to evidence contradicting

the district court’s conclusion. Accordingly, the district court did not abuse its discretion in

determining that injunctive relief was just and proper.

       With respect to Paulsen’s cross-appeal, “[d]istrict courts have broad authority in crafting

equitable remedies such as injunctions,” Conn. Office of Prot. & Advocacy for Persons with

Disabilities v. Hartford Bd. of Educ., 464 F.3d 229, 245 (2d Cir. 2006), although we must bear in

mind “that a judge’s discretion is not boundless and must be exercised within the applicable rules

of law or equity,” Inn Credible Caterers, 247 F.3d at 364 (internal quotation marks omitted).

Because Paulsen fails to identify any statute or binding precedent that limited the district court’s

authority to include, in a § 10(j) preliminary injunction, a provision temporarily disallowing

minimum shift requirements in any agreement between PrimeFlight and SEIU, the district court

did not abuse its discretion by including that provision in the preliminary injunction. By contrast,

a cease and desist order complements a bargaining order and, accordingly, is a standard part of a

§ 10(j) preliminary injunction. See Seeler v. Trading Port, Inc., 517 F.2d 33, 37–38 (2d Cir.

1975). And PrimeFlight offers no argument on appeal in defense of the district court’s omission

of the cease and desist order. Accordingly, we conclude that the district court abused its

discretion by omitting a cease and desist order from the preliminary injunction.

       We have considered all of the parties’ remaining contentions on appeal and have found

that they are without merit. For the foregoing reasons, the order of the district court is


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AFFIRMED as to the issuance of the injunction and AFFIRMED in part and REVERSED in

part as to the terms of the injunction. We REMAND with direction to enter an appropriate cease

and desist order.

                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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