Federal judge issues injunction in lockout

NEW YORK (Legal Newsline) - A federal judge on Thursday issued a temporary injunction ordering the owners of a Brooklyn apartment complex to end a months-long lockout of more than 70 unionized porters and maintenance workers and resume bargaining "immediately."

Judge Brian M. Cogan of the U.S. District Court in the Eastern District of New York issued the injunction, which was sought by the Brooklyn office of the National Labor Relations Board, in a case concerning the Flatbush Gardens apartments.

The NLRB issued a complaint against Renaissance Equity Holdings, LLC. It alleged various unfair labor practices, including not bargaining in good faith with Local 32BJ of the Service Employees International Union. The case is currently pending before an NLRB administrative law judge.

The judge said he granted the injunction, in part, to prevent the locked-out employees from losing their insurance benefits and being evicted from their apartments. All previous terms and conditions of employment have been restored except for reducing the wage rates of employees because of the Employer's claimed financial hardship. The lockout began in November 2010.

Cogan denied Renaissance's motion to dismiss the injunction based on an argument that the January recess appointments of three NLRB board members were improper. The company said, "In the interest of judicial restraint, the Supreme Court has counseled that a court should not decide a constitutional question unless the question is absolutely necessary to the court's decision."

The judge said that the constitutional question was separate from the injunction petition. This was authorized by the Acting General Counsel and delegated by the Board when it had an undisputed quorum.

He said because the injunction petition was approved by both the Board and the Acting General Counsel, "one of these approvals must have been valid regardless of whether the President's appointments to the Board were constitutional."

"Judge Cogan's decision did not rule on the merits of whether the NLRB appointments were appropriate or not. No courts have. The courts just said they do not have standing to judge," said Vincent Vernuccio, Labor Policy Counsel for the Competitive Enterprise Institute.

"The first real test for the NLRB appointees will be either when it issues the Excelsior or Ambush Election rule - whichever one is first using the non-recess, recess Obama appointees."

The Excelsior rule concerns where it would expand the power of the union to collect names, addresses and phone numbers of employees. The ambush election rule concerns permitting employees to stage unionizing elections.