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Paulsen ex rel. NLRB v. Remington Lodging & Hospitality, LLC

Paulsen ex rel. NLRB v. Remington Lodging & Hospitality, LLC

United States Court of Appeals for the Second Circuit

April 23, 2014, Argued; December 12, 2014, Decided

Nos. 13-2775-cv (Lead), 13-3372-cv (Con), No. 13-3876-cv

Opinion

 [*465]  Barrington D. Parker, Circuit Judge:

This opinion resolves three appeals arising from a union organizing campaign at a Hyatt Hotel operated by Remington Lodging and Hospitality, [**2]  LCC ("Remington"). James G. Paulsen, a Regional Director for the National Labor Relations Board ("NLRB"), appeals from a May 23, 2013 order of the United States District Court for the Eastern District of New York (Bianco, J.) ("May order"). The order denied his petition under § 10(j) of the National Labor Relations Act ("NLRA" or "the Act") for an injunction prohibiting Remington from engaging in unfair labor practices and ordering the immediate reinstatement of certain discharged employees. See 29 U.S.C. § 160(j). He also appeals from an August 14, 2013 order that denied his motion for an injunction ordering the immediate reinstatement of the discharged employees not withstanding the fact that the court concluded that Remington had engaged in unfair labor practices ("August order"). The district court concluded in both instances that an injunction was not "just and proper," primarily because Remington had already offered, or would soon offer, reinstatement to the discharged employees. See Joint App'x at 91-94;2 Paulsen ex rel. N.L.R.B. v. Remington Lodging & Hospitality, LLC, No. 13 Civ. 2539 (JFB) (WDW), 2013 U.S. Dist. LEXIS 114628, 2013 WL 4119006, at *9-13 (E.D.N.Y. Aug. 14, 2013).

Separately, Remington appeals from the district court's August order insofar as it denied Remington's motion to dismiss Paulson's petition on the ground that the NLRB had been improperly constituted under the Recess Appointments Clause, see N.L.R.B. v. Noel Canning, 134 S. Ct. 2550, 2575, 189 L. Ed. 2d 538 (2014), and enjoined Remington from engaging in unfair labor practices. For the reasons discussed below, we AFFIRM in part and REVERSE in part the orders of the district court.

BACKGROUND

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773 F.3d 462 *; 2014 U.S. App. LEXIS 23502 **; 201 L.R.R.M. 3653; 165 Lab. Cas. (CCH) P10,739

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-Appellant, — v. — REMINGTON LODGING & HOSPITALITY, LLC, Respondent-Appellee.REMINGTON LODGING & HOSPITALITY, LLC, Petitioner-Appellee, — v. — JAMES G. PAULSEN, Regional Director of Region 29 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Respondent-Appellant.1

Prior History:  [**1] Appeal from the United States District Court for the Eastern District of New York. No. 13 CV 2539(JFB) — Joseph F. Bianco, Judge.

Paulsen v. Remington Lodging & Hospitality, LLC, 2013 U.S. Dist. LEXIS 114628 (E.D.N.Y., Aug. 14, 2013)

Disposition: Appeal from orders of the United States District Court for the Eastern District of New York (Joseph F. Bianco, J.) granting in part and denying in part Petitioner's petition for a preliminary injunction under § 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j), and denying Respondent's motion to dismiss. AFFIRMED in part, REVERSED in part, and REMANDED.

CORE TERMS

employees, district court, injunction, reinstatement, housekeeping, unfair labor practice, discharged employee, injunctive relief, general counsel, replacement, discharged, appointed, campaign, offers, orders, re-employment, subcontracted, unionization, organizing, hotel, motion to dismiss, reasonable cause, appeals

Civil Procedure, Appeals, Standards of Review, Clearly Erroneous Review, Questions of Fact & Law, Labor & Employment Law, Collective Bargaining & Labor Relations, General Overview, Justiciability, Standing, Judicial Review, Enforcement of Bargaining Agreements