NOT FOR PUBLICATION [Dkt. Ent. 1]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

:

DOROTHY L. MOORE-DUNCAN, : 

Regional Director of the :

Fourth Region of the :

NATIONAL LABOR RELATIONS :

BOARD, for and on behalf of :

the NATIONAL LABOR RELATIONS :

BOARD, :

:

Plaintiff, : Civil No. 11-00041 (RMB/JS)

:

v. : OPINION

 :

SOUTH JERSEY SANITATION :

CORPORATION, :

 :

Defendant. :

 :

APPEARANCES:

Margaret M. McGovern, Esq.

William E. Slack, Jr., Esq.

National Labor Relations Board

615 Chestnut Street, 7 Floor th

Philadelphia, PA 19106

Counsel for Petitioner

Russell L. Lichtenstein, Esq.

Jeffrey Ryan Lindsay, Esq.

Cooper, Levenson, April, Niedelman & Wagenheim, PA

1125 Atlantic Avenue, 3 Floor rd

Atlantic City, NJ 08401-4891

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Counsel for Respondent

BUMB, UNITED STATES DISTRICT JUDGE:

This matter comes before the Court on an application for

interim injunctive relief pursuant to § 10(j) of the National

Labor Relations Act (the “Act”), 29 U.S.C. § 160(j), pending

final disposition of a related matter before the National Labor

Relations Board (the “Board” or “Petitioner”). Specifically, the

Board seeks an order directing the respondent South Jersey

Sanitation Corporation (“Respondent” or the “Company”) to (1)

offer immediate reinstatement to its former employee, Jeraldo

Cotto, who was wrongfully discharged, and (2) cease and desist

from coercive conduct interfering with the union organizing

activities of the Teamsters Union Local No. 115 (the “Union”). 

(See Pet.’s Br. 2, Dkt. Ent. 1-1.) 

On April 5, 2011, the Court conducted a hearing on this

matter and thereafter required supplemental briefing. For the

reasons that follow, the Court grants Petitioner’s request.

I. BACKGROUND

The facts set forth below are derived from the record of the

underlying administrative proceeding in South Jersey Sanitation

Corporation v. Teamsters Union Local No. 115, No. 4-CA-37537 (the

“Administrative Proceeding”). [See Dkt. Ents. 6, 8.] 

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Respondent is a trash and recycling collection firm with

operations in Hammonton, New Jersey. It employs approximately 30

truck drivers and 60 helpers or “throwers.” 

A. Union Organizing Activity

In late 2009, Jeff Kissling, one of Respondent’s drivers,

circulated a petition among the drivers asking for improved wages

and benefits, including health benefits. Kissling testified that

all of the drivers signed the petition, and on January 1, 2010,

the Company’s owner, Anthony Colasurdo, told Kissling that he had

hurt his feelings by circulating the petition and that Colasurdo

had no option but to discharge him. (Transcript of Admin.

Proceeding (“Admin. Tr.”) 34-35, Dkt. Ent. 8.)

From June 2007 through June 16, 2010, Respondent employed

Jeraldo Cotto as a truck driver. (Admin. Tr. 42:14-15.) Cotto

testified that Colasurdo questioned him in late January 2010,

about Kissling’s petition. According to Cotto, Colasurdo told

him that the person who had circulated the petition was “no

longer with us,” that Colasurdo would “burn the company down”

before he would let anyone “extort” him, and that if employees

did not like the way he ran the Company, they could either go or

“be fired.” (Admin. Tr. 45.)

In May 2010, the employees, led by Cotto, began a union

organizing drive at the Company. Cotto distributed and collected

union authorization cards from the other employees before and

after work. In all, he collected cards from approximately 38 of

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the 90 employees, which exceeded the 30% necessary to support a

petition for election pursuant to the Board’s administrative

rules. (Admin. Tr. 82:2-3; Pet.’s Suppl. Br. 3.) 

Cotto testified that on May 28, 2010, Colasurdo interrogated

him about his union activity. Cotto testified that he lied to

Colasurdo, claiming he knew nothing about the union, because he

was afraid if he told the truth, he would be fired, just as

Kissling had been. (Admin. Tr. 52-56.) According to Cotto,

Colasurdo then told him to keep him informed about any union

activity, particularly if anyone approached him about union

cards. (Admin. Tr. 54-56.) 

 Cotto further testified that despite Colasurdo’s warning,

he continued his organizing activity. On June 7, 2010, based on

Cotto’s submission of signed authorization cards, the Union filed

a petition for a representation election with the Board’s

regional office in Philadelphia. On June 12, 2010, Cotto helped

organize a union meeting with the Company’s employees. Prior to

that meeting, Edwin Morales, a supervisor at the Company, told

Cotto he was being pinpointed as the leader of the Union effort

and that if the Union came in, it would “mess it up for

everybody” and a lot of people “would be out of work.” (Admin.

Tr. 61-62.) According to Cotto, he observed Morales sitting in a

parked car both before and after the June 12th meeting.

In early June, Company personnel called several group

meetings of employees to discuss the Union campaign and

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discourage employees from supporting the Union. According to

Cotto and another driver, Jose Cartagena, who still works for

Respondent, Colasurdo asked for time to institute benefits and

threatened to sell the business if they unionized. (Admin. Tr.

57-59; 198-99.)

On June 16, 2010, Cotto told Respondent that he had received

a subpoena to testify the following day at a Board hearing on the

representation petition. That afternoon, Colasurdo discharged

Cotto, purportedly because Cotto was not insurable as a driver. 

Cotto’s insurability, however, had been an issue of concern for

several years. (Admin. Tr. 64-65.)

B. The Underlying Action

On October 27, 2010, Petitioner filed a complaint with the

Board, alleging that Respondent had engaged in unfair labor

practices under Sections 8(a)(1), (3), and (4) of the Act, 29

U.S.C. § 158(a)(1, 3, 4), by discharging a union supporter and

making various threats and statements. The case was tried by

Administrative Law Judge Robert Giannasi (the “ALJ”) on January

24-25, 2011. The ALJ found merit to most of the allegations in

the Complaint. Petitioner subsequently dropped the allegations

found to be without merit from the instant petition. [Dkt. Ent.

14-1, at 2.] Respondent has appealed the decision to the Board.

Specifically, the ALJ “found that Respondent [had] engaged

in certain unfair labor practices,” and ordered it to cease and

desist from such conduct. (ALJ Opinion (“Op.”) 14:17-18, 14:36-

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15:21, Dkt. Ent. 14.) The ALJ also found that Respondent had

unlawfully discharged Cotto and ordered Respondent “to offer him

full and immediate reinstatement to his former job, or, if that

job no longer exists, to a substantially equivalent position . .

. .” (Op. 14:19-21.)

Petitioner now seeks injunctive relief pending the Board’s

review of the ALJ decision. [Dkt. Ent. 14.] Respondent concedes

the first prong of the two-part analysis for injunctive relief

pursuant to § 10(j), that there exists “reasonable cause” to

believe that unfair labor practices have been committed.

Respondent, however, contests the second prong, arguing that the

requested relief, specifically Cotto’s reinstatement, is not

“just and proper.” (Resp.’s Ltr Br. 2, Dkt. Ent. 18.) 

C. The Petition for § 10(j) Injunctive Relief

Upon Petitioner’s request, the Court reviewed the record in

the underlying administrative proceeding. Since the ALJ had not

addressed the “just and proper” prong and the parties had not

adequately briefed this issue, the Court conducted a hearing on

it. At this hearing, it became clear that the Union had done

virtually nothing to attempt to unionize the Company after

Cotto’s discharge. The Court questioned the obvious: whether 3

Michael Darden, chief organizer for the Union at South Jersey

3

Sanitation, initially testified that he did not continue his attempts to

unionize the Company, because Cotto informed him “everybody was scared.” (Tr.

23:22-24.) (Although Respondent objected to Darden’s testimony, presumably on

hearsay grounds, it appears the Court did not rule on this objection.

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union activity had halted because (1) employees were afraid to

unionize due to Cotto’s wrongful discharge, or (2) the Union

deliberately decided to discontinue the campaign without Cotto.

(Tr. 36:18-37:3.) The Court directed the parties to file

supplemental briefing on whether reinstatement of an unlawfully

discharged employee is just and proper where the union has

undertaken virtually no effort to continue its organizing

activity after the discharge. The parties submitted briefing on

the matter, and it is now ripe for adjudication.

II. LEGAL STANDARD

Section 10(j) of the Act authorizes this Court to grant the

interim reinstatement of an unlawfully discharged employee

pending the Board’s resolution of the underlying NLRB proceeding

Respondent was correct that pursuant to the hearsay rule, this statement may

not be admitted to prove the truth of the matter, i.e., that the employees

were in fact scared. See Fed. R. Evid. 801(c). However, it may be admitted

for the limited purpose of showing the effect of the statement on the

listener, Darden, in order to explain why he did not continue his unionizing

efforts. See, e.g., Marks v. Marina Dist. Dev. Co., 213 Fed. Appx. 147, 153-

54 (3d Cir. 2007) (affirming district court’s admission of police officer’s

testimony about dispatch call where it was admitted not for the truth of the

matter but to show its effect on the officer).) Nevertheless, Darden later

testified as follows:

[Counsel for Respondent]: You haven’t spoken with any other employees

who signed cards from South Jersey Sanitation Corporation,

correct?

[Darden]: Correct.

[Respondent’s Counsel]: You and the Teamsters have done nothing to

continue your efforts to organize that workforce, correct?

[Darden]: Correct.

...

[Respondent’s Counsel]: [I]n terms of communicating with any members of

the workforce at South Jersey Sanitation Corporation, you’ve done

– the Teamsters have done nothing, correct?

[Darden:] Correct.

(Tr. 32:19-33:7.)

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where: (1) there is “reasonable cause” to believe that unfair

labor practices have been committed, and (2) the injunctive

relief sought is “just and proper.” See Kobell v. Suburban

Lines, Inc., 731 F.2d 1076, 1078 (3d Cir. 1984). Respondent has

conceded the “reasonable cause” prong. Thus, the Court considers

only whether the requested relief is “just and proper”.

Injunctive relief is “just and proper” under § 10(j) “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.” Pascarell v. Vibra Screw, Inc.,

904 F.2d 874, 878 (3d Cir. 1990). The “critical determination,” 4

then, “is whether, absent an injunction, the Board’s ability to

facilitate peaceful management-labor negotiation will be

impaired.” Id. at 879. The district court must determine

“whether the failure to grant injunctive relief would be likely

to prevent the Board, acting with reasonable expedition, from

effectively exercising its ultimate remedial powers.” Id.

(citing Suburban Lines, 731 F.2d at 1091-92). This requires the

Court to focus not “on what relief may ultimately be granted to

individual employees, but on the likelihood of harm to the

“[T]he relevant status quo is not the situation as it was before the Board

4

filed its petition, but the situation as it was right before the alleged

unfair labor practices took place.” Vibra Screw, 904 F.2d at 878, n.5. Thus,

in this case, the relevant status quo was the situation after Cotto had

secured authorization cards but before his discharge.

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bargaining process in the interim.” Vibra Screw, 904 F.2d at

879, n.7 (quoting Wellington Hall, 651 F.2d at 907) (internal

quotations omitted). Thus, interim reinstatement of an 5

unlawfully discharged employee is warranted under § 10(j) where

“the chilling effect of management retaliation may outlast the

curative effects of any remedial action the Board might take,”

including ultimate reinstatement of the illegally discharged

worker. Id. at 878-79.

Significantly, in Suburban Lines, the Third Circuit

interpreted its prior opinion in Wellington Hall as creating a

“presumption” that ultimate reinstatement is unlikely to

adequately vindicate the remedial powers of the Board. 731 F.2d 6

at 1094. Several district courts in this Circuit recognized this

Importantly, “the relief to be granted is only that reasonably necessary to

5

preserve the ultimate remedial power of the Board and is not to be a

substitute for the exercise of that power.” Kobell, 731 F.2d at 1091.

Section 10(j) relief is not designed to vindicate the rights of private

employees but to protect the public interest in the integrity of the

collective bargaining process. See Eisenberg v. Wellington Hall Nursing Home,

Inc., 651 F.2d 902, 906-07 (3d Cir. 1981).

The Suburban Lines Court also acknowledged that an argument could be made

6

that “§ 10(j) was reserved for the extraordinary case and that it was not

intended to undermine the normal processes of labor law adjudication.” 731

F.2d at 1091, n.26. The Court concluded, however, that it need not “consider

fully” this principle and instead recognized a “presumption” in favor of

injunctive relief. Id. at 1094; see also Eisenberg v. Tubari, Civ. Action No.

85-1857, 1985 WL 32832, *3 (D.N.J. July 8, 1985) (finding that although the

Third Circuit recognized an “argument” that § 10(j) was reserved for the

extraordinary case, it was not so held). But see Traction Wholesale Center

Co., Civ. Action No. 97-6544, 1997 WL 792909, *1 (noting in a 3-page opinion

that “it is still clear that § 10(j) is reserved for the extraordinary case,”

without mentioning the Suburban Lines Court’s disclaimer that it need not

“consider fully” this principle). Indeed, the Sixth Circuit has questioned

the Suburban Lines Court’s suggestion that “10(j)'s use is reserved for the

extraordinary cases,” given “Congress' use of the less than stringent ‘just

and proper’ standard.” Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d 26,

30 n.4 (6th Cir. 1988).

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“presumption.” See, e.g., Pascarell v. Gitano Group, Inc., 730

F. Supp. 616, 624 (D.N.J. 1990); Pascarell v. Orit Corp./Sea Jet

Trucking, 705 F. Supp. 200, 204 (D.N.J. 1988), aff’d, 866 F.2d

1412 (3d Cir. 1988); Kobell v. Menard Fiberglass Products, Inc.,

678 F. Supp. 1155, 1168 (W.D. Pa. 1988); Tubari, 1985 WL 32832,

*20.

However, the Third Circuit later qualified this principle,

questioning whether Wellington Hall had actually established such

a “presumption” or merely “refined the factors that the district

court must consider[.]” Vibra Screw, 904 F.2d at 879 n.7

(internal citations omitted). In Vibra Screw, the Third Circuit

interpreted the prior case law as establishing “deference” toward

the Board:

The ‘presumptive’ quality to this inquiry stems from

the deference due the Board when it requests a § 10(j)

injunction. Unless there are circumstances, like the

size, intimacy, and longevity of the bargaining unit,

which indicate that the bargaining process will not be

harmed, courts must be deferential to the Board’s

determination that the integrity of the process needs

interim protection.

Id. Other courts have given deference to the Board, noting that

it “exercises its Section 10(j) discretion sparingly” and takes

an “overall cautious approach” to pursuing such relief. See,

e.g., Gold v. State Plaza, Inc., 435 F. Supp. 2d 110, 120 (D.D.C.

2006) (noting that in 2005, the Board “sought injunctive relief

in only 15 cases out of the 1,440 complaints issued by NLRB

10

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Regional Directors”). In other words, the Board’s decision to

seek injunctive relief pursuant to § 10(j) represents a goodfaith indication by the Board that it entertains the alleged

violations in this particular case with a “heightened level of

concern.” Id. Thus, the Court begins its analysis with a

deferential view of the Board’s assessment that interim relief is

warranted. 

Against this backdrop, the Court is also mindful that

reinstatement is only appropriate where the unlawful discharge

resulted in a chilling effect on Respondent’s employees. Vibra

Screw, 904 F.2d at 879, n.6 (“[T]he chilling effect finding is a

preliminary determination that must be made in order to determine

whether the bargaining unit would not be able to reconstruct

itself easily[.]”); Lightner v. Dauman Pallet, Inc., 823 F. Supp.

249, 253 (D.N.J. 1992), aff’d, 993 F.2d 877 (3d Cir. 1993)

(“Reinstatement is appropriate if the court finds that the

termination of respondent’s employees resulted in a ‘chilling

effect’ on co-employees.”). 

III. DISCUSSION

At the outset, the Court recognizes that evidence of a

chilling effect is, by its very nature, difficult to establish,

since an employee who is truly fearful of management retaliation

will not want to broadcast such information for fear of

11

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management retaliation. Nevertheless, a petitioner must do more

than merely rely on a deferential standard to support a request

for 10(j) relief. 

Here, Petitioner offers no evidence that the Union attempted

to organize after Cotto’s discharge, aside from contacting Cotto. 

The Board broadly rests upon the discharge itself to establish a

chilling effect on Respondent’s employees. Importantly, however,

the Board also cites to certain additional facts for support,

including: (1) the nature of the unfair labor practices, i.e.,

the timing of Cotto’s discharge “on the heels of the subpoena

request” and the resulting stalled union campaign, (Pet.’s Suppl.

Br. at 7, Dkt. Ent. 22; Tr. 50:14-51:6); (2) Cotto’s statement in

the underlying proceeding that no union cards were signed after

his discharge, because certain employees were “up on the fence”

since his termination and “d[id]n’t want to end up losing their

jobs,” (Admin. Tr. 85:5-11, Dkt. Ent. 8); and (3) the fact that

five employees failed to appear despite being subpoenaed in the

underlying administrative proceeding, (Tr. 51:2-6; Admin. Tr.

265:7-22). 

Assessing the third fact first, Petitioner asks the Court to

speculate as to why certain employees failed to appear at the

administrative proceeding. While it is plausible that they were

afraid of being associated with the Union in light of Cotto’s

12

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termination, it is also quite plausible that they did not appear

for any number of other reasons. In fact, the Court notes that 7

two employees did appear under subpoena, Miguel Capeles and Jose

Cartagena. Capeles testified that he originally supported the

Union, but changed his mind after speaking with his family and

girlfriend before Cotto was discharged. (Admin. Tr. 131:7-20.) 

Cartagena testified that he supported the Union before Cotto was

terminated and continues to support it. (Admin. Tr. 207:7-12.) 

Thus, the first fact does not support an inference that

management retaliation caused a chilling effect. 

The Court next considers the second fact, that Cotto’s

testimony supports evidence of a chilling effect. In the

administrative proceeding, Cotto testified that no other union

cards had been signed since his termination, “[b]ecause the guys

are up on the fence since I’ve gotten terminated. They don’t

want to end up losing their jobs.” (Admin. Tr. 85:5-11.) At the

“just and proper” hearing, Cotto testified that employees had

told him they were afraid of supporting the union. (Tr. 14:2-

14.) These statements were admissible under the “state of mind”

exception to the hearsay rule for the limited purpose of showing

For example, Cotto testified that some of the employees were “illegals,” so

7

their absence may also have been due to fears associated with immigration

status. (Admin. Tr. 62:6.) The Court recognizes that it engages here in

gross speculation merely to prove a point.

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that the fear existed (but not what caused it). Such “fear is 8

highly relevant to the propriety of injunctive relief.” 

Lightner, 823 F. Supp. at 252 n.2. “[A]n inference may be drawn

from this state of mind that, if corroborated by additional

evidence, may properly support injunctive relief.” Hirsch, 949

F. Supp. at 303-04. 

The Court finds such additional evidence in the first fact

raised by Petitioner. A chilling effect can be inferred from the

particularly egregious circumstances of Cotto’s termination. 

First, there is “overwhelming” evidence that the Company fired

Cotto because of his union activity. The timing of the 9

discharge is particularly compelling since it occurred in the

midst of Cotto’s union activities and immediately after Colasurdo

received a copy of Cotto’s subpoena. (Op. 11:21-23.) Thus, it

is quite likely that Respondent’s employees would interpret the

discharge as retaliation against union activity. Since Cotto was

See Fed. R. Evid. 803(3); Hirsch v. Corban Corps., 949 F. Supp. 296, 303

8

(E.D. Pa. 1996) (NLRB could offer union representative's testimony under state

of mind exception that, when asked to join union, employees expressed fear of

losing jobs; same statements could not be offered to prove what caused fear

and additional evidence would be required); Lightner, 823 F. Supp. at 252 n.2

(same).

The ALJ found in relevant part:

9

On this record, the Acting General Counsel has easily met his burden

of proving that Respondent fired Cotto, because he was a leader in the

Union’s campaign and because he was subpoenaed to testify in a Board

proceeding in support of the Union’s election petition. . . . In sum,

the evidence in support of the Acting General Counsel’s initial

showing of unlawful motivation is overwhelming.”

(Op. 11:1-3 (emphasis added).)

14

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the only visible supporter of the union, his discharge just as 10

the union drive was getting underway, sent a very clear message

that efforts to unionize would be punished with lay-offs. In

fact, this message was compounded by the prior termination of

Kissling. Although the Board never alleged his termination as an

unfair labor practice, the record reflects that his termination

was connected to his union activity as well. 

11

The Third Circuit has recognized the adverse impact of such

firings on employees. In Vibra Screw, the few employees who had

been most open in their support of the union were terminated. 

904 F.2d at 881. The Third Circuit interpreted this as a clear

message from management that “if one is associated with the

union, one will be disciplined.” The Court explained:

Not only is that precisely the kind of message, and

action, that the NLRA prohibits, it is the kind of

message that cannot be effectively retracted even if

the discharged employees are ultimate reinstated by the

Board. Employees will not risk the uncertainty and

hardship attendant upon even temporary lay-off if that

is the price they must pay for union activity.

(See Pet.’s Suppl. Br. 2, Dkt. Ent. 22; Tr. 22:12-14, 23:3 (Darden testimony

10

that Cotto was the Union’s “inside” guy and that he did not have contact with

individual employees other than Cotto)).

The ALJ’s Opinion states in relevant part:

11

There is, of course, no doubt that circulating a petition among

employees seeking improved benefits is protected concerted activity and

it is clear that Kissling was engaged in such conduct. There is also no

doubt that Colasurdo’s remarks to Cotto in their January meeting made

clear that Kissling was terminated for engaging in such protected

activity.”

(Op. at 7:28-32 (emphasis added).)

15

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Id. (emphasis added). Indeed, the “discharge of active and open

union supporters risks a serious adverse impact on employee

interest in unionization.” Wellington Hall, 651 F.2d at 907

(internal quotations and citations omitted). 

Furthermore, the Court notes that the public interest in

safeguarding the collective bargaining process in its formative

stages is at stake here. Cotto’s discharge occurred during the

embryonic period of the union campaign, just before the Board

hearing on the representation petition. Courts have recognized

that “[t]he absence of key union organizers can contribute to the

erosion of support for a nascent union movement.” Pye v. Excel

Case Ready, 238 F.3d 69, 75 (1st Cir. 2001) (internal citation

omitted) (affirming grant of § 10(j) relief where employees were

discharged during early stages of union campaign); cf. Vibra

Screw, 904 F.2d at 881 (affirming reinstatement of discharged

employee prior to certification of the union); Eisenberg v.

Lenape Products, Inc., 781 F.2d 999, 1006 n.1 (3d Cir. 1986)

(Becker, J., dissenting) (noting that “it may be more important”

to protect the early stages of a union campaign where “efforts to

unionize were nipped in the bud by the employees’ discharge”)

(citing Maram v. Universidad Intraamericana De Puerto Rico, Inc.,

722 F.2d 953 (1st Cir. 1983)). Unlike bargaining units that are

well-established and can easily reconstruct themselves after a

16

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union supporter is illegally discharged, the union campaign here

was in its early stages and thus particularly susceptible to

Respondent’s unlawful labor practices. Given the long passage of

time before the Board decides the merits of this case, the “spark

to unionize” may be completely extinguished before the Board can

exercise its remedial powers. Pye, 238 F.3d at 75.

Furthermore, the record indicates that Cotto was the only

visible union organizer at the Company. See, supra, Part I. 

Thus, his immediate reinstatement is particularly important to

the public interest because “the absence of the only union

organizer at the company for an extended period of time could

irreparably harm the union’s chances of organizing the

employees.” See Schaub v. W. Michigan Plumbing & Heating, Inc.,

250 F.3d 962, 971 (6th Cir. 2001) (quoting district court opinion

and affirming reinstatement of wrongfully discharged employee). 

If Cotto’s reinstatement occurs only after the Board reaches a

final resolution of this case, union activity will likely remain

at a standstill, the prospects of unionizing the Company will be

substantially diminished, and the Board’s ultimate remedial

powers will be frustrated. 

Respondent argues that there is no credible evidence of a

chilling effect, citing to Cotto’s testimony that the employees’

interest in the union has not been affected by his discharge. 

17

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(Tr. 11:19-23.) Petitioner responds that “it is not inconsistent

for employees to be in favor of the Union and yet be unwilling to

come forward as open union supporters.” (Pet.’s Suppl. Reply Br.

3). The Court agrees. The fact that employees still want to

unionize does not mean that they will. This is precisely how a

chilling effect operates: employees who want to unionize feel

they cannot do so without subjecting themselves to management

retaliation.

Respondent relies on an unpublished district court opinion

in this Circuit, Moore-Duncan v. Traction Wholesale Center Co.,

Civ. No. 97-6544, 1997 WL 792909 (E.D. Pa. 1997), for authority

to deny the petition for lack of union activity. In Traction

Wholesale, the Court denied reinstatement of a discharged

employee where the Board provided no “concrete evidence, direct

or circumstantial” that the relief was necessary. Id. at *3. 

The Court finds this case distinguishable, however, because the

employer’s conduct there was “not egregious” and the employer had

no knowledge of the union organizing activities prior to the day

of the discharge. Id. at *2. The Traction Court also recognized

twice that the “just and proper” analysis in that case was “not

an easy determination to make.” Id. at *2. Furthermore, that

Court applied a higher standard (limiting § 10(j) relief to the

“extraordinary” case), than the more deferential standard

18

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prescribed by Vibra Screw. Compare id. at *1 (citing Suburban

Lines, 731 F.2d at 1091 n.26) with discussion supra Part II and

n.6. 

Finally, Respondent argues that the Court should consider

the undue delay with which the Board sought injunctive relief,

given that six to seven months passed between Cotto’s discharge

in mid-June and the filing of this petition in early January. It

is true that an “insufficiently explained delay provides some

probative evidence that interim injunctive relief [is] not

entirely essential.” Suburban Lines, 731 F.2d at 1094, n.33. 

However, when reviewing the amount of time the Board takes to

file a § 10(j) petition, “there is a certain amount of leniency

that the Board must be afforded, stemming from the deference to

the Board that is built into the statutory scheme.” Vibra Screw,

904 F.2d at 881. The Board must have time to complete a

“thorough investigation before it even requests the injunction.” 

Id. In Vibra Screw, the Third Circuit noted that where the

Board’s delay was at most “just under six months,” the district

court erred in finding this an unacceptably “leisurely pace” that

precluded injunctive relief. Id.; see also Moore-Duncan v.

Aldworth Co., 124 F. Supp. 2d 268, 293 (D.N.J. 2000) (granting §

10(j) relief after an eight-month delay between the

discriminatory layoffs and the filing of a petition). 

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Accordingly, the Board’s delay in this case is not fatal to its

petition. 

In light of the deference the Court must give to the Board,

and after careful consideration of all the relevant factors and

the specific facts of this case, the Court balances the equities

in favor of Petitioner. The Court emphasizes, however, that the

Board may not rely solely upon an unlawful discharge to meet its

burden under § 10(j). It must do more, and in this case it has:

given the circumstances of Cotto’s discharge, his visible role as

the lead union organizer, the critical timing of his discharge at

the early stage of the union campaign, and the statements made by

several employees expressing a fear of being laid off for

supporting the union, the Board has met its obligation under the

“just and proper” prong. The adverse impact of Cotto’s discharge

on employee interest in unionization must be countered swiftly

and decisively to protect the public interest in the integrity of

the collective bargaining process. Thus, in the final analysis,

the Court finds that Cotto’s reinstatement is necessary to

restore the status quo pending resolution of the underlying

litigation and to preserve the Board’s ultimate remedial powers

to facilitate peaceful management-labor negotiation. 

B. Remaining Injunctive Relief 

In light of the deferential standard discussed above, as

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well as the ample evidence of Defendant’s unfair labor practices,

and the fact that Defendant has conceded the “reasonable cause”

prong, the Court also finds the remaining injunctive relief “just

and proper.” In order to prevent the Company’s unfair labor

practices from having a lingering effect, Respondent must cease

and desist from any coercive conduct that interferes with the

organizing activities undertaken by the Union, insofar as the

Union continues such organizing activities at the Company.

IV. CONCLUSION

For all of the reasons stated herein, the Board’s petition

for injunctive relief pursuant to § 10(j) of the Act shall be

GRANTED. An appropriate Order will issue herewith.

Dated: May 23, 2011 s/Renée Marie Bumb 

RENÉE MARIE BUMB

UNITED STATES DISTRICT JUDGE

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