Drew-King v. Deep Distributors of Greater NY, Inc.

194 F. Supp. 3d 191, 2016 U.S. Dist. LEXIS 86808, 2016 WL 3661285
CourtDistrict Court, E.D. New York
DecidedJuly 5, 2016
Docket16-CV-1916 (SJF) (AKT)
StatusPublished
Cited by1 cases

This text of 194 F. Supp. 3d 191 (Drew-King v. Deep Distributors of Greater NY, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drew-King v. Deep Distributors of Greater NY, Inc., 194 F. Supp. 3d 191, 2016 U.S. Dist. LEXIS 86808, 2016 WL 3661285 (E.D.N.Y. 2016).

Opinion

MEMORANDUM AND ORDER

FEUERSTEIN, District Judge:

Petitioner Kathy Drew-King, acting Regional Director of Region 29 of the National Labor Relations Board (“Petitioner” or “the Board”), brings this petition on the Board’s behalf seeking a temporary injunction pursuant to section 10(j) of the National Labor Relations Act (the “Act”), 29 U.S.C. § 160(j), pending the final disposition of unfair labor practice charges contained in a complaint that is the subject of ongoing proceedings before the Board. See Petition, Docket Entry (“DE”) [1], Petitioner alleges that Deep Distributors of Greater NY, Inc. d/b/a The Imperial Sales, Inc. (“Respondent”) has engaged in, and is engaging in, acts and conduct in violation of Section 8(1) and (3) of the Act.

On May 23, 2016, subsequent to the filing of this action, Administrative Law Judge Steven Davis (the “ALJ”) issued a Decision and Order in the underlying matter. See ALJ Decision of 5/23/16 (the “ALJ Decision” or “ALJ Dec.”), DE [13]. According to petitioner, the ALJ Decision is not the final administrative decision of .the Board and, as a final decision “could be months or even years away,” the need for injunctive relief sought in the petition remains necessary. See Letter, DE [13]. For the reasons set forth herein, the petition is granted. ,

I. BACKGROUND

A. Factual Background

Respondent is engaged in the non-retail sale of beauty, appliance, and housewares products. Retail stores purchase the products, and Respondent then ships those purchases to retailers and on-line purchasers. Respondent employs approximately 20 [194]*194employees at its warehouse, in Syosset, New York and later Bethpage, New York. The petition alleges that Tony Bindra (“Bindra”) is the owner of Respondent, Herb Miller (“Miller”) is the warehouse manager, and Amjad Malik (“Malik”) is the assistant warehouse manager.

1. Union activity and election

In approximately January 2015, employee Henry Hernandez (“H. Hernandez”) and several warehouse co-workers became interested in joining a union. Various workers, including Jose Wilfredo Argueta (“Argueta”), began to meet with Wester Fabres (“Fabres”), Union agent for United Workers of America, Local 660 (the “Union”). Fabres periodically parked his car, which bore .a large flag reading “Local 660,” across from the warehouse in view of management. On February 10, 2015, the Union filed a petition seeking to represent Respondent’s warehouse employees. Petitioner claims that on or. about February 17, 2015, Malik gave employees the impression that their Union activities were under surveillance by Respondent.

On February 26, 2015, the Union and Respondent stipulated to holding an election on March 24, 2015. On March 6, 2015, a week after the petition for the election was filed, three employees, Argueta, Jose Martin Torres (“J. Martin Torres”), and his brother, Jose Michel Torres (“J. Michel Torres”), were discharged. According to Miller, Bindra had asked him to recommend employees to terminate because the weather was harsh and there was a slowdown of business. Miller and Bindra decided to terminate J. Martin Torres because he was a temporary employee, Argueta because of his “safety problems,” and J. Michel Torres as the “least productive worker.” Petitioner contends that the three employees were terminated because they joined and assisted the Union, and participated in concerted activities. In the four years Argueta worked for Respondent, he had not been suspended or disciplined, and he did not receive any written warnings. While Respondent claimed that J. Martin Torres was temporarily employed to replace a specific worker, that employee had returned to work three weeks prior to Torres’s discharge.

On or about March 9, 2015, Miller called a meeting of all employees at the Syosset Facility. Petitioner claims that Miller threatened the employees with unspecified reprisals if they selected the Union to represent them, told them it would be futile to join the Union, and thx-eatened them with discharge if they chose to have the Union act as their collective bargaining representative.

The election was held on March 24, 2015. At the election, of the twenty (20) eligible voters, nine (9) votes were cast in favor of the Union, and five (5) were cast against. Both sides challenged the result.1

2. FLSA litigation

On July 8, 2015, thirteen then-current and past employees of Respondent commenced a federal lawsuit in this District alleging, inter alia, failure to pay overtime in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. and New York law.2 On or about July 14, 2015, [195]*195Bindra interrogated one employee in his office about the FLSA lawsuit, held an employee meeting about their involvement with the FLSA lawsuit, and threatened them with unspecified reprisals.

On or about July 21, 2015, Respondent implemented new work rules regarding discipline for lateness and on-the-job use of cell phones (the “Code of Conduct”). No written work rules existed prior to this time. Employees were directed to sign a form acknowledging the Code of Conduct. Five employees, H. Hernandez, Marvin Hernandez (“M. Hernandez”), Roberto Reyes (“R. Reyes”), Javier Reyes (“J. Reyes”), and Augustin Sabillon (“Sabil-lon”), all of whom were named plaintiffs in the FLSA lawsuit, refused to sign and were terminated on the spot. Petitioner alleges that Respondent instituted the Code of Conduct to discourage employees from engaging in protected activity, specifically the FLSA lawsuit.

B. Procedural Background

On March 10, 2015, the Union filed an unfair labor practice charge on behalf of Argueta, J. Martin Torres, and J. Michel Torres, alleging that they were terminated from their employment because of their support for, and activities on behalf of, the Union. The Union filed amended charges on March 12 and August 31, 2015 to add allegations that respondent threatened employees with reprisals and discharge if they supported the Union.

On July 31, 2015, H. Hernandez filed a charge alleging that he and fellow employees J. Reyes, M. Hernandez, R. Reyes, and Sabillon, were terminated because of their protected activities related to filing the FLSA lawsuit. H. Hernandez amended his charge to include allegations that respondent unlawfully interrogated and threatened employees.

The various charges were consolidated by the Board’s Regional Director into an Amended Consolidated Complaint, and a hearing was held on December 9, 11, 21, 22, and 23, 2015 and January 20, 22, 26, and 27, 2016 before ALJ Steven Davis.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
194 F. Supp. 3d 191, 2016 U.S. Dist. LEXIS 86808, 2016 WL 3661285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drew-king-v-deep-distributors-of-greater-ny-inc-nyed-2016.