24-3324-cv Poor v. Parking Systems Plus, Inc.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2025
(Argued: October 8, 2025 Decided: December 19, 2025)
Docket No. 24-3324-cv
TERESA POOR, Regional Director of Region 29 of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD,
Petitioner-Appellant,
- against -
PARKING SYSTEMS PLUS, INC.,
Respondent-Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
Before: CALABRESI, CHIN, and LEE, Circuit Judges. Appeal from an order of the United States District Court for the
Eastern District of New York (Brown, J.) denying an application by the Regional
Director of the National Labor Relations Board for a temporary injunction under
§ 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j), against respondent
employer, a parking management company. The district court issued a
four-sentence text order denying the requested injunction, which would have
prohibited the employer from engaging in unfair labor practices and ordered the
reinstatement of certain discharged employees. The Regional Director appeals,
arguing that the text order violated Rule 52(a)(2) and that this Court should
reverse because she has made the necessary showing for a § 10(j) injunction.
REVERSED and REMANDED for entry of the requested injunction.
CHAD A. WALLACE, Attorney (William B. Cowen, Acting General Counsel, Stephanie Cahn, Acting Deputy General Counsel, Kayce R. Compton, Associate General Counsel, Richard J. Lussier, Deputy Associate General Counsel, Robert N. Oddis, Assistant General Counsel, Laurie Monahan Duggan, Deputy Assistant General Counsel, on the brief), National Labor Relations Board, Washington, D.C., for Petitioner-Appellant.
MICHAEL JAMES MAURO, Milman Labuda Law Group, PLLC, Lake Success, NY, for Respondent-Appellee.
-2- CHIN, Circuit Judge:
Petitioner Teresa Poor, Regional Director of the National Labor
Relations Board (the "Board"), appeals from an order of the United States District
Court for the Eastern District of New York (Brown, J.), denying her petition for a
temporary injunction against Respondent Parking Systems Plus ("Parking
Systems") under § 10(j) of the National Labor Relations Act (the "Act"), 29 U.S.C.
§ 160(j).
The district court entered a four-sentence text order denying the
injunction, stating that Poor had "failed to articulate any cognizable irreparable
harm." Joint App'x at 25. We conclude that the district court's text order fails to
comply with Rule 52(a)(2) of the Federal Rules of Civil Procedure. We further
conclude that Poor has made the necessary showing for a § 10(j) injunction under
the four-part test governing such analyses, as set forth in Starbucks Corp. v.
McKinney, 602 U.S. 339, 345 (2024) (citing Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7 (2008)). We therefore REVERSE and REMAND for entry of the requested
injunction.
-3- BACKGROUND
I. Factual Background
When reviewing a grant or denial of injunctive relief, we are
generally bound by a district court's findings of fact. See Hoffman ex rel. NLRB v.
Inn Credible Caterers, Ltd., 247 F.3d 360, 364 (2d Cir. 2001). But "where [a] district
court fail[s] to make any findings of fact under Rule 52(a), we do not think that
we are thereby foreclosed from examining the record to determine if sufficient
allegations or sufficient evidence supports the district court's injunctive ruling."
Hsu ex rel. Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 848 n.1 (2d Cir.
1996) (citation modified) (citing Sampson v. Murray, 415 U.S. 61, 86 n.58 (1974));
see also Genovese Drug Stores, Inc. v. Conn. Packing Co., 732 F.2d 286, 292 (2d Cir.
1984) (vacating, based "[o]n the undisputed facts," a district court's entry of
preliminary injunction). Accordingly, in assessing whether the district court
abused its discretion by denying the requested injunction, we draw our facts
from what is undisputed in the record before the district court, and note where
the parties have offered conflicting factual assertions.
Additionally, insofar as we go further than merely reviewing the
decision below for abuse of discretion and independently address whether the
-4- requested injunction is appropriate, we are not limited to the undisputed facts in
the record before the district court. Subsequent to the district court’s ruling, an
Administrative Law Judge ("ALJ"), having held a trial in this matter, issued a
decision on the unfair labor practice charges underlying Poor’s § 10(j) request.
See App'x at 4. In that decision, the ALJ resolved several key factual disputes
using fact- and inference-based assessments of the credibility of witnesses who
testified at trial. Id. at 19. Where an ALJ has resolved factual disputes based on
the same record as what was before a district court, we may ask, in assessing the
propriety of § 10(j) relief, whether "the Board will reject the ALJ's credibility
assessments or overturn the findings that depend on those assessments" on
review. Silverman v. J.R.L. Food Corp., 196 F.3d 334, 338 (2d Cir. 1999).
Accordingly, we may rely on the ALJ's factual findings, even those related to
issues the parties dispute, when reviewing Poor's likelihood of success on the
merits. See id.
A. Parking Systems Wins the Stony Brook Bid
Stony Brook Hospital ("Stony Brook") is a public medical center
located in Stony Brook, New York. It contracts with vendors to provide valet
parking to hospital patients and visitors. Stony Brook's valet parking contract
-5- was held by Classic Valet Parking ("Classic") from 2015 to 2023. Classic's
employees, called "valet attendants," voted in 2015 to make Local 1102 Retail,
Wholesale & Department Store Union, United Food and Commercial Workers
(the "Union") their exclusive bargaining representative. Beginning in 2015, the
Union and Classic entered into successive collective bargaining agreements
("CBAs"), the most recent of which remained in force through October 31, 2025.
In 2023, Stony Brook solicited proposals from vendors to take over
the valet parking contract. The contract was awarded to Parking Systems, a
parking management company that employs around 1,000 employees and
operates at over 250 locations across Long Island and the greater Tri-State area.
When Parking Systems won the bid, the collective bargaining unit at Stony Brook
represented 34 of Classic's valet attendants. The parties dispute whether Parking
Systems leadership knew that Classic's employees were unionized when they
submitted their bid, though Parking Systems acknowledges that it did not
calculate its bid using union wage rates.
B. Parking Systems Recruits, then Declines to Hire Classic Employees
In the months between winning the bid and assuming operations,
leadership at Parking Systems contemplated whether to retain the Classic
-6- employees who were already working at Stony Brook. In internal emails sent in
October 2023, Parking Systems leaders expressed interest in doing so, with one
manager saying that "the biggest domino right now" was "contact[ing] members
of [Classic's] staff" to "figure out how many we're retaining." Joint App'x 107-08.
Then, in early November, the Union's attorney emailed Parking Systems to
request that it retain Classic's employees, recognize the Union, and assume the
CBA. Parking Systems leaders forwarded the email to their lawyer, but never
responded to the Union. The next day, a Parking Systems manager calculated
the cost of hiring Classic's employees at union wages and expressed concern that
its bid was already "close to the bone" in terms of profitability. App'x at 28.
Nevertheless, Parking Systems actively recruited Classic employees through
mid-November 2023. Managers visited Stony Brook, spoke to Classic employees
working at the lot, and distributed business cards containing QR codes linking to
Parking Systems' job application form.
Over the next month, however, it became clear that Parking Systems
did not intend to hire any Classic employees even though the positions remained
unfilled. Many Classic employees reported using the QR codes to fill out job
forms, but none heard back about their applications.
-7- In internal emails, a Parking Systems manager wrote of the Classic employees:
"They are 35 lost soul attendants chatting with no info." Joint App'x at 113.
Another replied that "the staff currently working . . . will be out of work in
December. We have to be careful of our messaging because they can't have walk
outs in the last 10 days or so." Id. At the same time Parking Systems seemingly
decided that it would not hire any Classic employees, it also posted an "urgently
hiring" job listing for a "Parking Lot Attendant" at Stony Brook Hospital. Id. at
104.
Despite its general refusal to hire Classic employees, Parking
Systems was very interested in one particular Classic valet -- Francis Gil Reyes, a
"standout employee" who had been working at Stony Brook since 2015. Id. at 66.
At Reyes's interview on November 25, 2023, Parking Systems offered her a job,
but noted that it was a "singular offer" and that it would not be hiring other
Classic employees. Id. Reyes testified at a hearing before the ALJ that, when she
asked why Parking Systems was not interviewing other employees, Parking
Systems part-owner Bobby Gust responded: "Because [the employees] worked
with the Union and . . . [t]he company didn't work with the Union." Id. at 35.
Reyes then turned down the job because, as she later testified, she "didn't feel
-8- comfortable that he just want to hire me and not the other co-workers,
because . . . we all belong to a union, and . . . we've been working together for a
long time." Joint App'x at 34. Two days after the interview, Reyes texted the
Union's business agent Ayse Porsuk that "the new parking system company does
not want to hire us because we have a union and they do not work with the
union." Id. at 86. 1
For its part, Parking Systems disputes that anti-union statements
were made at the meeting with Reyes. When asked at the ALJ hearing whether
he had told the former Classic employees that Parking Systems would not hire
them because they were unionized, Gust testified that he "absolutely did not." Id.
at 77. Similarly, when asked whether he had stated that he "halt[ed] the
employees' employment on the condition of them abandoning the Union," Gust
testified: "I did not say that. I did not imply that. Id. 2
C. Parking Systems Assumes Operations at Stony Brook
Parking Systems took over valet parking operations from Classic on
December 1, 2023. The parties offer different characterizations of the transition.
1 Reyes's text to Porsuk was originally in Spanish. 2 As discussed below, see infra pp. 14-15, the ALJ credited Reyes's testimony over Gust's testimony in this respect. -9- Poor argues that Parking Systems simply replaced Classic in providing valet
parking services at the same Stony Brook parking lots, pointing to an admission
by Parking Systems part-owner Bobby Gust that it "continued to operate
substantially the same parking service operation as existed under Classic Valet."
Id. at 50. Parking Systems argues that it "operates very differently" than Classic
because it changed the locations of the valet stations, opened a new lane that
requires traffic facilitation, and implemented different key handling and revenue
collection procedures. Appellee's Br. at 21.
Parking Systems did not hire any former Classic employees when it
began operating at Stony Brook. Its current employees are not unionized. The
former Classic employees told Porsuk, the Union business agent, that they lost
faith in the Union after losing their jobs. Porsuk stated that she believed the
former employees would return to Stony Brook if offered reinstatement, though
most have since found new jobs.
II. Procedural Background
On December 4, 2023, the Union filed an unfair labor practice charge
against Parking Systems before the Board. After investigating the charge, Poor --
as Regional Director of Region 29 of the Board -- issued a complaint before an
- 10 - ALJ on April 23, 2024. ALJ Benjamin Green conducted a trial on the allegations
in the complaint between June 18, 2024 and July 24, 2024, at which he received
witness testimony and documentary evidence.
During the pendency of the proceedings before the ALJ, Poor sought
an interim preliminary injunction in the district court below pursuant to § 10(j) of
the Act. Section 10(j) injunctions are a statutorily authorized solution to a timing
problem. Because agency adjudications often proceed at a "notoriously glacial"
pace, by the time the Board resolves an unfair labor practice charge and issues
remedial relief, employers have often already accomplished their unlawful
objectives, rendering the Board's order ineffective. See McKinney, 602 U.S. at 359
(Jackson, J., concurring in part) (quoting Kinney v. Pioneer Press, 881 F.2d 485, 491
(7th Cir. 1989)); see also Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047, 1055 (2d Cir.
1980). In light of this problem, Congress gave the Board the power to seek an
interim injunction during the pendency of agency proceedings to "preserv[e] or
restor[e] the status quo as it existed before the onset of the unfair labor practices."
McKinney, 602 U.S. at 359 (Jackson, J., concurring in part) (quoting NLRB v.
Electro-Voice, Inc., 83 F.3d 1559, 1575 (7th Cir. 1996)).
- 11 - Under § 10(j), the Board may, upon the issuance of a complaint,
petition a district court for "appropriate temporary relief or restraining order."
29 U.S.C. § 160(j). While the district court considers the § 10(j) petition, the
underlying unfair labor practices claim proceeds through the administrative
adjudication process -- first review by an ALJ, then appeal to the Board, and
lastly enforcement by a federal court of appeals. 29 U.S.C. § 160(b)-(c); (e)-(f); see
also McKinney, 602 U.S. at 343.
Poor filed her § 10(j) petition and moved for a hearing on October 7,
2024. She requested an injunction ordering Parking Systems to, among other
things, reinstate the former Classic employees without prejudice to any rights
and privileges previously enjoyed, recognize the Union, begin good-faith
negotiations, and upon request by the Union, rescind any or all unilateral
changes that Parking Systems implemented at or since the time it took over
operations. The petition argued that the Board was likely to succeed in proving
that Parking Systems violated three provisions of the Act: threatening to refuse to
hire employees because of their union affiliation or conditioning their
employment on abandoning their union under § 8(a)(1); refusing to hire
employees because of their union affiliation under § 8(a)(3); and refusing to
- 12 - recognize or bargain with the union under § 8(a)(5). See 29 U.S.C. § 158(a)(1), (3),
(5). Poor also argued that, absent injunctive relief, irreparable harm would result
to the "national policy protecting workers' right to unionize, to the rights of
[Parking Systems'] employees and former Classic employees, and to the public
interest." Joint App'x at 11-12.
The district court denied the petition and motion for a hearing in a
four-sentence text order. The entirety of the order, entered November 14, 2024,
read:
Having failed to articulate any cognizable irreparable harm -- the sine qua non of preliminary relief -- plaintiff has failed to meet the demanding standard for the issuance of a preliminary injunction. Notably, plaintiff has already sought the very same relief before an Administrative Law Judge, and seeks the same remedy here as in their filings in that proceeding, which remain sub judice. Additionally, the timing of plaintiff's filings, some eight months after the acts complained of, raises the specter of delay, which strongly weighs against the relief sought. Thus, the motion for a preliminary injunction is DENIED.
Id. at 25. This appeal followed.
After the order but before the parties submitted briefing in this
appeal, the ALJ issued his decision in the underlying case. On January 24, 2025,
the ALJ found that Parking Systems violated § 8(a)(3) by refusing to hire Classic
- 13 - employees because they were represented by the Union, and § 8(a)(5) by refusing
to recognize and bargain with the Union and by unilaterally changing the
employees' terms of employment in contravention of the operative Classic CBA.
The ALJ recommended dismissing certain § 8(a)(1) charges, however, because he
did not find that Parking Systems had conditioned employment on Classic
employees abandoning the Union. Parking Systems has filed exceptions to the
ALJ decision, which are now pending before the Board.
The ALJ's finding of anti-union discrimination rested, in part, on his
resolution of the "primary credibility dispute in this case" -- "whether, during the
November 25 interview of Gil Reyes, Account Executive Gust said the
Respondent could not hire all the Classic employes because the company does
not work with the Union or unions." App'x at 19. Based on a combination of
documentary evidence, observation of witness testimony, and inferential logic,
the ALJ found Reyes more credible than Parking Systems as to these statements.
Id. at 20. Additionally, independent of the disputed statements made at the
Reyes meeting, the ALJ also found support for his finding of anti-union
discrimination in Parking Systems' "failure to offer a convincing rationale for
- 14 - refusing to hire Classic employees" after initially indicating an intent to do so. Id.
at 27.
On appeal, Poor only seeks appellate review and relief as to the
sustained § 8(a)(3) and (5) violations.
DISCUSSION
We begin with a discussion of whether the district court's
four-sentence text order violates the requirements of Rule 52(a). Finding that it
does, we then turn to the merits of Poor's § 10(j) petition, and conclude that she
has made a sufficient showing under all four prongs of the standard governing
§ 10(j) injunctions following McKinney.
I. Rule 52(a)
Rule 52(a) states: "In granting or refusing an interlocutory
injunction, the court must . . . state the findings and conclusions that support its
action." Fed. R. Civ. P. 52(a)(2). "A principal purpose" of Rule 52(a) "is to allow
appellate review of the district court's decision." NAACP v. Town of East Haven,
70 F.3d 219, 223 (2d Cir. 1995). Accordingly, a district court's "findings and
conclusions should provide a clear understanding of the basis of the trial court's
decision." Fair Hous. in Huntington Comm. Inc. v. Town of Huntington, 316 F.3d
- 15 - 357, 364 (2d Cir. 2003). Orders containing only conclusory statements about the
preliminary injunction factors are insufficient to satisfy Rule 52(a). See, e.g.,
Alleyne v. N.Y. State Educ. Dep’t, 516 F.3d 96, 101 (2d Cir. 2008) (per curiam)
(finding Rule 52(a) violation where order identified correct legal standard for
injunction, "but does not make any findings as to whether [the movants] are
'likely' to succeed on the merits of their claims").
The district court's four-sentence text order plainly violates
Rule 52(a). The order summarily states that Poor "failed to articulate any
cognizable irreparable harm," without any explanation or discussion. Joint
App'x at 25. This is the exact kind of unsupported, conclusory statement that is
insufficient to satisfy Rule 52(a). See Romer v. Green Point Sav. Bank, 27 F.3d 12, 16
(2d Cir. 1994) (finding Rule 52(a) violation where order "contained no findings of
fact or substantive conclusions of law, beyond stating the Plaintiffs were 'likely to
suffer irreparable harm' and 'have a likelihood of success on the merits'"); Tekkno
Lab’ys, Inc. v. Perales, 933 F.2d 1093, 1097 (2d Cir. 1991) (finding violation where
order only "stated in conclusory terms . . . that [the movant] had demonstrated
irreparable harm and . . . a likelihood of success on the merits"). The only
arguable "finding" made by the district court is a single sentence stating that "the
- 16 - timing of plaintiffs' filings . . . raises the specter of delay, which strongly weighs
against the relief sought." Joint App'x at 25. But this conclusory statement,
which provides no discussion of the reasons for the delay or the harm resulting
from it, does not provide a sufficient basis to evaluate the district court's
rationale for denying Poor's request for injunctive relief. See Alleyne, 516 F.3d at
101 (noting that district court's sparse order makes it "difficult to identify specific
findings as to harm or likelihood of success").
The district court's failure to comply with Rule 52(a) is
non-jurisdictional. See Hsu ex rel. Hsu, 85 F.3d at 848 n.1. We therefore are not
precluded from proceeding to review the merits of the court's decision to deny
the injunction. Id. While we typically vacate a district court's injunctive order
and remand for specific findings in this posture, see NAACP, 70 F.3d at 223, we
"may proceed with appellate review despite inadequate findings if we are able to
discern enough solid facts from the record to permit us to render a decision."
Davis v. N.Y.C. Hous. Auth., 166 F.3d 432, 436 (2d Cir. 1999). Here, we have the
entire record as presented before the ALJ and the district court -- including
hundreds of pages of affidavits, exhibits, and hearing transcripts -- from which
- 17 - we "discern enough solid facts" to review the injunction determination on the
merits.
II. Failure to Apply the Winter Standard
We review a § 10(j) injunction ruling for abuse of discretion, but all
underlying conclusions of law de novo. Inn Credible Caterers, 247 F.3d at 364; Lusk
v. Vill. of Cold Spring, 475 F.3d 480, 484 (2d Cir. 2007). Poor argues that the
district court failed to state or apply the correct legal standard in its four-sentence
text order. We take this opportunity to clarify the law that governs a district
court's analysis of whether a § 10(j) injunction should issue given the Supreme
Court's recent decision in McKinney.
Prior to McKinney, this Court applied a two-prong test to evaluate
§ 10(j) petitions, asking (1) whether there is "reasonable cause" to believe that an
unfair labor practice was committed, and (2) whether injunctive relief is "just and
proper." Paulsen v. Remington Lodging & Hosp., LLC, 773 F.3d 462, 468-69 (2d Cir.
2014). The Supreme Court in McKinney rejected an analogous two-prong test
adopted by the Sixth Circuit, holding instead that the traditional four-part test
for preliminary injunctions applies to § 10(j) petitions because the text of the Act
did not displace the "traditional equitable principles" guiding the provision of
- 18 - injunctive relief. McKinney, 602 U.S. at 348. In light of this holding, we apply the
traditional four-prong test to assess whether to grant or deny a § 10(j) petition.
Under that test, as articulated in Winter, 555 U.S. at 20, the Board must show that
it is "likely to succeed on the merits, that [it] is likely to suffer irreparable harm in
the absence of preliminary relief, that the balance of equities tips in [its] favor,
and that an injunction is in the public interest." McKinney, 602 U.S. at 346
(quoting Winter, 555 U.S at 20, 22).
Poor contends that the district court committed legal error by failing
to apply Winter, and that it misinterpreted the significance of the parallel
proceedings before the ALJ. Indeed, the district court did not cite either
McKinney or Winter. Moreover, the order noted that Poor "already sought the
very same relief before an Administrative Law Judge, and seeks the same
remedy here as in their filings in that proceeding, which remain sub judice." Joint
App'x at 25. We agree with Poor that, to the extent the court's denial of
injunctive relief was based on this reasoning, that reliance is in error. The
existence of a pending ALJ proceeding does not render a § 10(j) petition
redundant. Rather, this dual-track mechanism -- a § 10(j) petition proceeding
before a district court while the merits proceed before an ALJ -- is precisely what
- 19 - Congress established in the Act. And federal courts have often granted § 10(j)
injunctions even after an ALJ decision has been issued, in recognition that interim
relief is needed because ALJ decisions may still be appealed to the Board, as is
the case here. See, e.g., Silverman, 196 F.3d at 337-38; Inn Credible Caterers Ltd., 247
F.3d at 368. In any event, we conclude that Poor has made a sufficient showing
under all four prongs of that test to warrant the preliminary injunctive relief that
§ 10(j) affords.
III. The Denial of Injunctive Relief
We may reverse a district court's denial of injunctive relief where the
court abused its discretion. See Poor v. Amazon.com Servs. LLC, 104 F.4th 433, 440
(2d Cir. 2024). "Although reversal of an order denying an application for a
preliminary injunction is customarily accompanied by a directive that the district
court conduct a new hearing on remand," we may instead "direct the district
court to issue the injunction" if we find a plaintiff's arguments meritorious.
Patton v. Dole, 806 F.2d 24, 31 (2d Cir. 1986).
1. Likelihood of Success on the Merits
Under Winter's first prong, the Board must "make a clear showing
that it is likely to succeed on the merits." McKinney, 602 U.S. at 349 (citation
- 20 - modified). But unlike a traditional preliminary injunction, a district court
analyzing a § 10(j) petition does not make a "predictive judgment about how it
will rule on the merits itself. Instead, the court is predicting the future decision
of the Board." McKinney, 602 U.S. at 363 (Jackson, J., concurring in part). This
Circuit has alternatively described the inquiry as the likelihood that "a Board
decision finding an unfair labor practice will be enforced by a Court of Appeals"
-- the only enforcement mechanism provided for by the Act. Kaynard v. Mego
Corp., 633 F.2d 1026, 1033 (2d Cir. 1980). 3
After the district court issued its text order in this case, the ALJ
issued its decision finding that Parking Systems violated § 8(a)(3) and § 8(a)(5).
While "we do not sit in review of the ALJ's decision," it provides a "useful
benchmark against which the Director's prospects of success [before the Board]
may be weighed." Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 288 (7th Cir.
2001). Where an ALJ has made determinations based on the same record as what
was before a district court, we ask whether "the Board will reject the ALJ's
3 Of course, predicting a future decision of the Board is different from predicting whether such a decision will be enforced by a Court of Appeals. But given the deference owed by the Courts of Appeals to the Board’s factual findings and legal interpretations, these inquiries will generally converge. See McKinney, 602 U.S. at 364 (Jackson, J., concurring in part). - 21 - credibility assessments or overturn the findings that depend on those
assessments" on review. Silverman, 196 F.3d at 338.
On appeal, Poor argues that she has made a clear showing of success
as to the § 8(a)(3) and § 8(a)(5) violations. We agree that Poor is likely to succeed
on the merits of these claims before the Board.
a. § 8(a)(3) Refusal to Hire
Section 8(a)(3) makes it an unfair labor practice for an employer to
encourage or discourage membership in a union by discriminating in hiring or
other employment decisions. 29 U.S.C. § 158(a)(3). Poor argues she is likely to
succeed in showing that Parking Systems violated § 8(a)(3) by refusing to hire the
former Classic employees due to their union membership. We agree.
We assess failure to hire claims under the Wright Line
burden-shifting framework. See Wright Line, 251 NLRB 1083 (1980), enforced, 662
F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982); Pergament United States,
Inc. v. NLRB, 920 F.2d 130, 137-39 (2d Cir. 1990) (applying Wright Line to failure
to hire claim). Under Wright Line, the Board must first show that "antiunion
animus contributed to the employer's [hiring] decision." Dir., Off. of Workers'
Comp. Programs, Dep't of Lab. v. Greenwich Collieries, 512 U.S. 267, 276 (1994).
Anti-union motive may be inferred from circumstantial evidence, such as "the - 22 - employer's knowledge of the employees' union activities, the timing of the
[failure to hire], or other antiunion activity by the employer." Bozzuto's Inc. v.
NLRB, 927 F.3d 672, 683 (2d Cir. 2019) (citation modified). Once an animus
showing is made, the burden shifts to the employer to "establish as an affirmative
defense that it would have [declined to hire] the employee for permissible
reasons even if the employee had not been involved in union activity." Greenwich
Colleries, 512 U.S. at 276.
Poor is likely to succeed under Wright Line. There is sufficient
evidence, including internal emails, to show that Parking Systems initially
intended to hire Classic employees, then changed its tune once it discovered their
union affiliation. Parking Systems leadership discussed "figur[ing] out how
many [Classic employees] we're retaining" in internal emails on October 24, 2023,
and then calculated the cost of hiring Classic employees at union wage rates the
day after being contacted by the Union representative. Even after being warned
that the bid was "close to the bone," management actively recruited Classic
employees by giving them QR codes linked to job application forms. App'x at
28. But Parking Systems' approach had evidently turned by the time managers
told Reyes no other Classic employees would be considered because they
- 23 - "worked with the Union and . . . [t]he company didn't work with the Union,"
which certainly points to anti-union animus. 4 Joint App'x at 35; see also NLRB v.
Staten Island Hotel Ltd. P'ship, 101 F.3d 858, 861 (2d Cir. 1996) (per curiam)
(upholding finding of anti-union animus from statements such as manager
saying that the employer "wasn't going to hire anybody from the union"). True
to its word, Parking Systems did not hire any Classic employees, despite posting
that it was "urgently hiring" for the same unfilled roles. Joint App'x at 104.
These undisputed facts also directly contravene Parking Systems'
primary affirmative defense, which is that it had a company policy of not hiring
a predecessor's employees. The October 24 internal emails and the fact that
Parking Systems distributed job applications to the Classic employees undermine
Parking Systems' argument that it never intended to hire Classic employees at
all. Taking these facts together, Poor can likely show that the employees' union
4 As noted previously, Parking Systems disputes that these statements were made. But the ALJ found Reyes, not Parking Systems, credible. And because we are conducting our own § 10(j) merits analysis -- not merely reviewing that of the court below -- it is appropriate to give deference to the ALJ’s credibility assessment, even though it post-dated the district court's decision. Moreover, even if Parking Systems did not express anti-union animus at the Reyes meeting -- that is, if Reyes was lying -- Parking Systems' decision not to hire the unionized employees after initially indicating an intent to do so is sufficient on these particular facts to establish prima facie anti-union animus under Wright Line. It follows that even the undisputed facts are sufficient to demonstrate likely success on the merits. - 24 - affiliation contributed to Parking Systems' decision not to hire them, and Parking
Systems is unlikely to succeed in rebutting this inference of anti-union animus.
b. § 8(a)(5) Failure to Bargain
An employer violates § 8(a)(5) if it "refuse[s] to bargain collectively
with the representatives of [its] employees." 29 U.S.C. § 158(a)(5). We conclude
that Poor is likely to succeed before the Board on this claim as well.
A new employer assumes an obligation to bargain with the union of
its predecessor's employees if it is in "legal successorship relation" with its
predecessor -- that is, if (1) there is "substantial continuity" between the two
employers and (2) a majority of the new workforce were employees of the
predecessor. NLRB v. Burns Int’l Sec. Servs., Inc., 406 U.S. 272, 280-81 (1972); Fall
River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 43, 47 (1987); accord Inn
Credible Caterers, 247 F.3d at 365. Here, the second element is likely met. Where a
putative successor fails to hire predecessor employees due to anti-union
discrimination, the Board has long adopted a presumption that but for such
discrimination, the putative successor would have retained predecessor
employees as a majority of its workforce. See Pressroom Cleaners & Serv. Emps.
- 25 - Int'l Union, Loc. 32BJ, 361 NLRB 643, 643 (2014). 5 Here, Poor can likely establish
that Parking Systems failed to hire a majority of Classic's employees because of
their union membership, see supra § III.1.a. We may therefore presume that, but
for this discriminatory motive, Parking Systems would have retained the
majority of Classic's employees. See id. Poor's likelihood of successfully showing
a failure to bargain violation thus turns on the first element: whether there was
"substantial continuity" between Classic and Parking Systems.
"Substantial continuity" is a factual inquiry based on the totality of
the circumstances. Fall River Dyeing, 482 U.S. at 43. Courts consider "whether the
business of both employers is essentially the same; whether the employees of the
new company are doing the same jobs in the same working conditions under the
same supervisors; and whether the new entity has the same production process,
produces the same products, and basically has the same body of customers." Id.
Critically, substantial continuity is evaluated from the perspective of the
employees -- the key inquiry is whether employees "view their job situations as
5 Our Court has reasoned along similar lines. See The Staten Island Hotel Ltd. P'ship, 101 F.3d at 861-62 (upholding the Board's remedial order by resolving uncertainty over whether the successor would have retained the predecessor's employees under prior wages against the employer, because "it was the [employer's] discriminatory acts that created the uncertainty as to what terms and conditions of employment would have been agreed . . . ."). - 26 - essentially unaltered," thus creating a legitimate expectation of continued
representation by their union. Id.; see also NLRB v. DeBartelo, 241 F.3d 207, 210-11
(2d Cir. 2001).
Poor can likely show that there was substantial continuity between
Classic and Parking Systems. Both provided the same valet parking services at
the same lots at Stony Brook, with one Parking Systems manager agreeing that it
"continued to operate substantially the same parking service operation as existed
under Classic Valet, including serving the same types of hospital parking needs."
App'x at 50. The changes Parking Systems introduced, such as switching key
handling procedures and the location of valet stations, were "minor operational
changes" that did not destroy substantial continuity. See Allways E. Transp., Inc.
& Int’l Bhd. of Teamsters, Loc. 445, 365 NLRB 686, 688 (2017). There is nothing in
the record suggesting that these changes would alter the "employees' job
situation [such] that they would change their attitudes about being represented"
by the Union. Id. at 688 (citation modified). And indeed, from the perspective of
the employees, valet attendants under both employers "performed essentially the
same jobs in essentially the same facilities with the same general public." Inn
Credible Caterers, 247 F.3d at 366.
- 27 - Finally, the "substantial continuity" prong also requires that "the
bargaining unit that [the] union seeks to represent remains appropriate under the
successor's operations." Banknote Corp. of Am. v. NLRB, 84 F.3d 637, 642 (2d Cir.
1996) (citation modified); see Burns, 406 U.S. at 280-81. Parking Systems argues
that the single facility bargaining unit at Stony Brook is no longer "appropriate"
because Parking Systems interchanges its employees between the over 250 job
sites it operates.
"[T]he Board has long treated a unit limited to a single facility as
presumptively appropriate," even when a particular unit is part of a multi-
facility operation. Serv. Emps. Int'l Union, Loc. 32BJ v. NLRB, 647 F.3d 435, 449 (2d
Cir. 2011). In such circumstances, employers must meet a "heavy evidentiary
burden . . . to show that historical units are no longer appropriate," because
historical bargaining relationships "will not be disturbed where they are not
repugnant to the Act's policies." Banknote Corp. of Am., 315 NLRB 1041, 1043
(1994), enforced, 84 F.3d 637, 647 (2d Cir. 1996), cert. denied, 519 U.S. 1109 (1997). A
successor employer can rebut the "single-facility presumption" if it demonstrates
that "the functional integration between the single facility and successor's other
operations is so substantial as to negate the separate identity of the single-facility
- 28 - unit." Serv. Emps. Int'l Union, Loc. 32BJ, 647 F.3d at 449 (citation modified).
Whether units are functionally integrated depends on their "geographic
proximity, similarity of skills and functions, similarity of employment
conditions, centralization of administration, managerial and supervisory control,
employee interchange, functional integration of the employer, and bargaining
history." Staten Island Univ. Hosp. v. NLRB, 24 F.3d 450, 454 (2d Cir. 1994).
Parking Systems is unlikely to succeed in rebutting the single-facility
presumption as to the Stony Brook unit. By the time Parking Systems assumed
operations at Stony Brook, the Union had been representing the single-facility
bargaining unit at the hospital for over eight years, subjecting Parking Systems to
the "heavy evidentiary burden" of proving that a historical unit has been
rendered inappropriate. See Banknote Corp. of Am., 315 NLRB at 1043. Parking
Systems argues that its 250 job sites are functionally integrated because it
interchanges employees between locations and maintains a centralized staffing
system. But Stony Brook -- like Parking Systems' other locations -- has a single,
dedicated site manager and account representative. There is little evidence in the
record that Parking Systems has any specific plans to send valets from Stony
Brook to other sites, or how often this would occur. And most notably, the only
- 29 - one of Parking Systems' job sites that is currently unionized is represented by a
single-facility bargaining unit, undercutting its argument that a similar historical
unit would be inappropriate here.
Poor is therefore likely to show that Parking Systems is a legal
successor to Classic, and thus had an obligation to bargain with the Union.
Parking Systems does not contend that it has done so, making Poor likely to
succeed on the merits of her § 8(a)(5) claim.
c. § 8(a)(5) Unilateral Setting of Terms and Conditions
Poor alleges that Parking Systems committed a second violation of
§ 8(a)(5) by unilaterally instituting terms of employment different from those
under Classic's CBA without bargaining with the Union. She argues that she is
likely to prevail on the merits of this claim as well, and again, we agree.
Even if a new employer is found to be a legal successor to the old,
there is a related question of when its obligation to bargain with an incumbent
union attaches. In general, legal successorship -- and the corresponding duty to
bargain -- cannot be ascertained until a putative successor has hired a
"substantial and representative complement" of its workforce. Fall River Dyeing,
482 U.S. at 47-52; accord Inn Credible Caterers, 247 F.3d at 365. Therefore, when
making initial hires, a new employer is usually not bound by its predecessor's - 30 - CBA and is free to set terms and conditions of employment unilaterally. See
Burns, 406 U.S. at 284. But in cases where it is "perfectly clear" from the outset
"that the new employer plans to retain all of the employees in the unit," legal
successorship and the duty to bargain attach at the very outset of succession --
that is, before the effectuation of any hiring decisions. Id. at 294-95. And because
unilateral changes as to mandatory subjects of bargaining are forbidden during
CBA negotiations, see NLRB v. Katz, 369 U.S. 736, 737 (1962), successor employers
in "perfectly clear" cases are not permitted to deviate unilaterally from the terms
and conditions of their predecessors' CBAs.
This case falls under the "perfectly clear" exception. Under
longstanding Board precedent, affirmed by several Courts of Appeals, the
"perfectly clear" exception applies automatically to cases where legal
successorship is based not on actual majority-union retention, but rather on the
presumption that a majority union workforce would have been retained but for a
successor's anti-union discrimination in hiring. See Love’s Barbeque Rest. No. 62,
245 NLRB 78, 82 (1979), enforced in relevant part sub nom. Kallmann v. NLRB, 640
F.2d 1094, 1102-03 (9th Cir. 1981); Cap. Cleaning Contractors, Inc. v. NLRB, 147 F.3d
999, 1008 (D.C. Cir. 1998); Adams & Assocs., Inc. v. NLRB, 871 F.3d 358, 374 (5th
- 31 - Cir. 2017); Pace Indus., Inc. v. NLRB, 118 F.3d 585, 593-94 (8th Cir. 1997); U.S.
Marine Corp. v. NLRB, 944 F.2d 1305, 1320 (7th Cir. 1991) (en banc). As a result,
Parking Systems was bound by Classic's CBA from the outset.
This principle is supported by the reasoning of this Court's prior
decisions in which we have upheld relief under the Act where a majority of the
predecessor's employees would have been retained but for the successor's
unlawful discrimination, and a successor employer unilaterally alters the
predecessor's terms. See The Staten Island Hotel Ltd. P'ship, 101 F.3d at 861-62. In
Staten Island Hotel, a successor employer found liable for anti-union
discrimination argued that a Board order binding it to the terms and conditions
of its predecessor's CBA was "impermissibly punitive." Id. at 862. We rejected
this argument and upheld the Board's authority to impose this backpay remedy
for two reasons. First, we reasoned that the imposition of the predecessor's CBA
was "temporally limited: the Board's order require[d] payment at the prior rates
only until the Company negotiate[d] in good faith with the Union, either to
agreement or to impasse." Id. The same is true here, especially given that
Classic's CBA expired at the end of October and is now ripe for re-negotiation.
Second, we reasoned that because it was "hardly clear what terms would have
- 32 - been reached had the Company not so discriminated" -- and "[b]ecause it was the
Company’s discriminatory acts that created [this] uncertainty" -- the fairest result
was for the "wrongdoer to bear the risk of the uncertainty which its own wrong
created." Id. (citation modified). The same applies a fortiori here, where the
remedy at issue is a § 10(j) injunction modestly restoring the status quo prior to
Parking Systems' "discriminatory acts."
Accordingly, we conclude that Poor is likely to succeed in showing
that Parking Systems violated § 8(a)(5) of the Act by unilaterally setting initial
terms without first bargaining with the Union.
2. Irreparable Harm
Although McKinney abrogated our framework for analyzing the
merits of a § 10(j) petition, it did not disturb our precedents' reasoning as to what
constitutes harm justifying a grant of equitable relief. Indeed, many of our pre-
McKinney cases considered the import of irreparable harm, albeit under different
nomenclature. See, e.g., Inn Credible Caterers, 247 F.3d at 368 (reasoning, under
the prior test, that "injunctive relief under § 10(j) is just and proper when it is
necessary to prevent irreparable harm or to preserve the status quo"). Now,
under Winter, we continue to assess "traditional equitable principles governing
- 33 - injunctive relief" with an eye toward "apply[ing] them in the context of federal
labor laws." Id. at 368.
The district court order summarily stated that Poor failed to
"articulate any cognizable irreparable harm." Joint App'x at 25. This appears to
be based in part on the fact that "plaintiff's filings, some eight months after the
acts complained of, raises the specter of delay." Id. We hold that Poor did
articulate cognizable irreparable harm -- impairment of the employees' collective
bargaining rights and the unionization process. See Inn Credible Caterers, 247 F.3d
at 369. To the extent the district court denied relief based on filing delays, we
also conclude that the Board's operative delay in these proceedings, without
more, does not preclude a finding of irreparable harm.
The Supreme Court has noted that successorship situations place
unions and employees "in a peculiarly vulnerable position." Fall River Dyeing,
482 U.S. at 39. "Given the uncertainties that both the union and its members face
during the transition," courts have held that "a successor's refusal to recognize
the union or . . . to hire a majority of the predecessor's employees so as to escape
that obligation[] inflicts a particularly potent wound on the union and its
members." Bloedorn, 276 F.3d at 298. To that end, this Court has recognized that
- 34 - a successor's ability to hire a non-union workforce "[b]y its own violation of the
Act" deprives the predecessor employees of their "ability to exercise their
collective bargaining rights." Inn Credible Caterers, 247 F.3d at 369.
When deciding whether harm is irreparable in § 10(j) successorship
cases like this one, we ask "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. Put
differently, the harm Poor must show is not injury to the specific employees, as
Parking Systems suggests, but to "the unionization process." Remington Lodging,
773 F.3d at 469. Such harm is irreparable if the successor employer continues to
delay or undermine the bargaining process while failing to reinstate the original
employees, "because the process is unlikely to continue if former employees are
replaced with a new workforce that is not inclined to unionize." Id.
Poor alleged that Parking Systems' actions would irreparably harm
the "national policy protecting workers' right to unionize" and "the rights of [its]
employees and former Classic employees." Joint App'x at 11-12. These injuries
are clearly cognizable under our caselaw. Through its allegedly unlawful acts,
Parking Systems managed to "weaken severely, if not destroy, the power of the
- 35 - predecessor's employees to assert their collective bargaining rights." Inn Credible
Caterers, 247 F.3d at 369. Classic's employees were deprived of their right to
bargain through their chosen union, and became disillusioned with the Union as
a result. See Joint App'x at 47 (Reyes testifying that her coworkers "lost their faith
[i]n the Union" because "unions don't do[] nothing"); id. at 274-75 (Union agent
Porsuk writing that the employees "expressed how upset they were that they
were out of work only because they had a union" and that "the Union is
powerless to do anything for them"). This is the exact kind of "damage [to]
employee confidence" that could render "the Board's determination of any
violations . . . meaningless in the context of a new majority workforce committed
to non-unionization." Inn Credible Caterers, 247 F.3d at 369.
Poor's claim of irreparable harm is even more salient because, at the
time of this writing, the Board lacks the quorum required to issue final,
enforceable orders granting relief. See Trump v. Wilcox, 145 S. Ct. 1415 (2025)
(granting emergency application to block order reinstating Board member
Gwynne Wilcox, whom President Trump fired upon taking office for his second
term); see also New Process Steel, L.P. v. NLRB, 560 U.S. 674, 683 (2010) (holding
that a Board quorum is at least three members). Because the Board apparently
- 36 - will not be able to issue an enforceable order from the appealed ALJ decision in
this case at any time soon, see id., Parking Systems will have even longer to hire a
complete, non-unionized workforce "[b]y its own violation of the Act" in the
absence of interim injunctive relief. Inn Credible Caterers, 247 F.3d at 369.
Parking Systems does not meaningfully contest Poor's allegations of
injury, but instead argues that she has not demonstrated irreparable harm
because of the Board's delay in seeking injunctive relief. At the outset, neither
Parking Systems nor the district court focuses on the relevant period of delay.
The alleged unfair labor practices took place around November 2023, and the
Union filed its charge with the Board on December 4, 2023. Poor then spent
several months investigating that charge before issuing a complaint on April 23,
2024 -- the earliest date on which she could have filed a § 10(j) petition. See 29
U.S.C. § 160(j) ("The Board shall have power, upon issuance of a complaint . . . , to
petition any United States district court . . . for appropriate temporary relief or
restraining order.") (emphasis added). Poor filed the petition for injunctive relief
on October 7, 2024, around five and a half months later. Parking Systems
calculated "10 months" of delay between the Union filing its charge and Poor
filing her § 10(j) petition, see Appellee's Br. at 27; the district court calculated
- 37 - "eight months" between the alleged unfair labor practices and Poor's issuance of
a complaint, see Joint App'x at 25. But the operative delay is the time between
when Poor filed the complaint and was statutorily authorized to seek injunctive
relief and when she actually filed the petition -- around five and a half months.
We note two considerations relevant to the question of delay. First,
this Court has "reject[ed] the notion that the passage of time, alone, is sufficient
to justify rejecting a § 10(j) petition" where there is "evidence of ongoing interest
in organizing that was being hindered by absence of discharged employees."
Remington Lodging, 773 F.3d at 471. Instead, the question is whether injunctive
relief could still "restore the status quo as it existed prior to the unfair labor
practices." Id. at 471 (citing Kreisberg v. HealthBridge Mgmt., LLC, 732 F.3d 131,
141 (2d Cir. 2013)). Second, as a practical matter, delays of this length between
the filing of a complaint and petition are not uncommon in § 10(j) litigation. See,
e.g., Amazon.com Servs., 104 F.4th at 438 (one-year delay between complaint and
petition); HealthBridge Mgmt., 732 F.3d at 136 (eighteen-month delay); Hooks ex
rel. NLRB. v. Nexstar Broad., Inc., 54 F.4th 1101, 1109 (9th Cir. 2022) (seven-month
delay); Muffley ex rel. NLRB v. Spartan Mining Co., 570 F.3d 534, 544 (4th Cir. 2009)
(eighteen-month delay). This is likely because a Regional Director must receive
- 38 - authorization from the Board and its General Counsel before petitioning a
district court for injunctive relief, a process that can understandably take several
months. See 29 U.S.C. § 153(d); see also HealthBridge Mgmt., 732 F.3d at 136-37
(explaining authorization process).
To be sure, excessive delay in seeking injunctive relief can undercut
an argument of irreparable harm, especially when the employer has already
remedied the alleged violations by the time relief is sought. In Remington
Lodging, for example, we affirmed the district court's denial of a § 10(j) injunction
after a four-month delay because by the time the petition was filed, the employer
had offered reinstatement to all the discharged employees at their former salary
and benefits, and "[n]othing indicate[d]" that the non-returning employees
"would return if an injunction were issued." 773 F.3d at 470. But here, unlike in
Remington Lodging, Parking Systems has not offered to reinstate all the former
Classic employees. Although Parking Systems has re-hired eleven of them, there
is no indication that they are receiving the salary and benefits they had under
their CBA with Classic. The fact that the re-hired former employees have
accepted offers to return in fact supports our conclusion that an injunction
- 39 - requiring Parking Systems to reinstate the remaining employees and begin good
faith bargaining could effectively restore the pre-violation status quo.
Accordingly, we hold that a five-month delay alone does not
preclude a finding of irreparable harm where a predecessor's employees are
ready and willing to return to their jobs under their bargained-for terms of
employment.
3. Balance of the Equities and the Public Interest
In assessing these final factors, "courts must balance the competing
claims of injury and . . . consider the effect on each party of the granting or
withholding of the requested relief," paying special attention to the "public
consequences in employing the extraordinary remedy of injunction." Winter, 555
U.S. at 24 (citation modified). "[S]ection 10(j) should be applied in the public
interest and not in vindication of purely private rights, so as to further the
policies of the Act." Seeler v. Trading Port, Inc., 517 F.2d 33, 40 (2d Cir. 1975)
(citation modified).
Parking Systems argues that an interim reinstatement order is
inequitable because Parking Systems will have to fire more than twenty
employees currently working at Stony Brook. We are unpersuaded that such an
- 40 - order would cause significant disruption to Parking Systems' operations given
that it was initially eager to retain the former Classic employees, and has already
re-hired eleven of them during the pendency of this case. Parking Systems
managers were also adamant throughout the ALJ hearing that whenever Parking
Systems loses an account, it will "always repurpose and reschedule those staff
members" at other locations. Joint App'x at 62. And even if Parking Systems
forgoes its practice of reassigning the twenty employees and fires them instead,
"the rights of improperly discharged employees take priority over the rights of
those hired to replace them." Remington Lodging, 773 F.3d at 469. All told,
Parking Systems may not commit unlawful labor practices to hire a
non-unionized workforce, and then argue that it is inequitable to order a
restoration of the status quo before its violations.
Parking Systems also argues that its operations will be harmed by
having to "implement terms and conditions of employment that are inconsistent
with [its] mode of operating." Appellee's Br. at 53. This may be so. But insofar
as Parking Systems' mode of operating runs afoul of labor law, the equities do
not demand its preservation. And in any case, the requested injunction will be
"temporally limited" because it only binds Parking Systems to the terms and
- 41 - conditions of Classic's CBA until good faith negotiations are completed, "either to
agreement or to impasse." The Staten Island Hotel Ltd. P'ship, 101 F.3d at 862. If
this bargaining ultimately reaches an impasse, Parking Systems may then
"implement unilateral changes in working conditions so long as the changes are
reasonably comprehended within its pre-impasse proposals to the union."
Emhart Indus., Hartford Div. v. NLRB, 907 F.2d 372, 376 (2d Cir. 1990).
Finally, granting injunctive relief in this case furthers the public
policies of the Act. Ordering Parking Systems to reinstate Classic's employees
under their bargained-for terms of employment during the pendency of the
Board's proceedings advances the policy of settling labor disputes through
collective bargaining, discourages successor employers from refusing to
recognize and bargain with a pre-existing union, and safeguards the integrity of
the collective bargaining process.
CONCLUSION
For the reasons set forth above, we hold that the district court's
order denying injunctive relief violates the requirements of Rule 52(a)(2).
Because we further conclude that Poor has made a sufficient showing under all
- 42 - four prongs of the Winter standard, the district court's decision is REVERSED
and the case is REMANDED for entry of the requested injunction.
- 43 -