4200 Avenue K LLCv.Fishman

United States District Court, S.D. New YorkMay 10, 2001
No. 00 Civ. 8814 (RLC) (S.D.N.Y. May. 10, 2001)

No. 00 Civ. 8814 (RLC).

May 10, 2001

DROGIN DROGIN Attorneys for Petitioner 425 Park Avenue, 31st Floor New York, New York 10022 IRA DROGIN, Of Counsel

RAAB, STURM GOLDMAN, LLP Attorneys for Respondent 440 Park Avenue South New York, New York 10016 IRA A. STURM, Of Counsel


ROBERT L. CARTER, District Judge

Petitioner, 4200 Avenue K LLC, ("petitioner"), moves pursuant to Local Civil Rule ("Local Rule") 6.3 and Rules 52(b), 59(e) and 60(b), F.R. Civ. P., for reconsideration of the court's April 2, 2001 opinion, reported at 4200 Ave. K LLC v. Fishman, 2001 WL 332960 (S.D.N.Y. April 4, 2001) (Carter, J.), compelling arbitration of dispute concerning a collective bargaining agreement ("agreement"). Respondent, Local 32B-32J, SEIU, AFL-CIO, ("respondent"), opposes petitioner's motion for reconsideration. Petitioner also moves pursuant to Local Rule 1.4 to substitute counsel. That motion is unopposed.


The background of this case has been documented in detail in the court's April, 2001 opinion, familiarity with which is presumed.


Local Rule 1.4 provides that once an attorney has entered an appearance, he or she may not withdraw without leave of court. In accord with Local Rule 1.4, petitioner has submitted a letter by its former counsel, Morris Tuchman, explaining that he "can no longer represent [petitioner], for personal reasons." (Drogin Aff., Ex. 1.) Petitioner moves to substitute Drogin Drogin as its attorneys of record. The motion is granted.


The standards governing motions for amendment of findings under Rule 52(b), motions to alter or amend a judgment pursuant to Rule 59(e), and motions for reconsideration pursuant to Local Rule 6.3 are the same. See Candelaria v. Coughlin, 155 F.R.D. 486, 491 (S.D.N.Y. 1994) (Sweet, J.);Sims v. Mme. Paulette Dry Cleaners, 1986 WL 12511, at *3, n. 2 (S.D.N.Y. Oct. 31, 1986) (Lasker, J.). Therefore, for simplicity's sake, these motions will be considered pursuant to Local Rule 6.3.

To succeed on its motion, petitioner must present "matters or controlling decisions the court overlooked that might materially have influenced its earlier decision." Morser v. ATT Info. Sys., 715 F. Supp. 516, 517 (S.D.N.Y. 1989) (Sweet, J.). Petitioner "may not advance new facts, issues or arguments not previously presented to the court." Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb Inc., 1989 WL 162315, at *3 (S.D.N.Y. Aug. 4, 1989) (Cannella, J.). Local Rule 6.3 "is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court." Ades v. Deloitte Touche, 843 F. Supp. 888, 892 (S.D.N.Y. 1994) (Sweet, J.). The decision to grant or deny a motion for reconsideration is within the sound discretion of the court. See Schaffer v. Soros, 1994 WL 592891, at *1 (S.D.N Y Oct. 31, 1994) (McKenna, J.).

Similarly, relief from a judgment or order under Rule 60(b) is "extraordinary judicial relief" and may be granted "only upon a showing of exceptional circumstances." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). To prevail, petitioner must show that one of the six possible bases outlined in Rule 60(b), such as an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error, exists. See Matura v. U.S., 189 F.R.D. 86, 90 (S.D.N.Y. 1999) (Edelstein, J.). "Such a motion is addressed to the sound discretion of the court." Joblon v. Solow, 1997 WL 158357, at *3 (S.D.N.Y. Apr. 3, 1997) (Sweet, J.)


In its April, 2001 opinion, the court held that it would exercise its concurrent jurisdiction over the parties' labor dispute, rather than refer the case to the National Labor Relations Board ("NLRB"). The court noted that there is little risk of an inconsistent ruling from the NLRB since respondent withdrew its unfair labor practice charge, and petitioner's charge was dismissed. See 4200 Ave. K LLC, 2001 WL 332960, at *5, n. 3. As a basis for reconsideration, petitioner now contends that it will appeal the NLRB's dismissal of its charge.

Petitioner mailed its appeal on April 27, 2001 for filing with the General Counsel of the NLRB on April 30, 2001. (Drogin Letter, April 27, 2001)

At the outset, the court notes that petitioner did not inform the court in a timely fashion of its intent to appeal the NLRB's dismissal, even though it had ample opportunity to do so. Since this fact was not before the court when it rendered its opinion, the court did not "overlook" it.

The NLRB dismissed petitioner's charge on March 23, 2001. The court did not issue its opinion until April 2, 2001.

Moreover, the possibility of an inconsistent ruling is only one factor courts consider in deciding whether an agency has primary jurisdiction. Other factors are whether the question requires the agency's expertise or discretion, and whether a prior application to the agency has been made. See National Commun. Ass'ns. Inc. v. ATT Co., 46 F.3d 220, 222 (2d Cir. 1995). The court found that the primary issues before the court/arbitrator are contractual rather than representational in nature, and therefore do not require the expertise or discretion of the agency. See 4200 Ave. K LLC, 2001 WL 332960, at *4-*5. Further, petitioner's application to the NLRB was not made until December 18, 2000, over a month after the complaint was filed, and may not be characterized as a "prior" application to the agency. See id. at *1. Therefore, even if the court had been aware of petitioner's intention to appeal, its conclusion would have been the same.

Local 812 GIPA v. Canada Dry Bottling Co. of New York and Manhattan Beer Dist., 1999 WL 301692 (S.D.N.Y. May 13, 1999) (McKenna, J.), does not compel a different conclusion. There, the plaintiff's appeal of the dismissal of its NLRB charge was pending at the time the court rendered its decision to stay the action before it. See id. at *2. Here, petitioner's appeal was not already pending at the time of the court's opinion. Moreover, in Local 812 GIPA the court found that the "unique facts of this case . . . implicate the NLRB's expertise." Id. at *6. Here, the court found that the NLRB's expertise is unnecessary.


Petitioner argues that the NLRB's recent decision in Levitz Furniture Co. of the Pacific, Inc., 2001 WL 314139 (N.L.R.B. March 29, 2001), creates a substantial danger of inconsistent rulings by the NLRB and the arbitrator. In Levitz, the NLRB adopted a more lenient standard for employers wishing to obtain NLRB-conducted representation management ("RM") elections: employers must demonstrate reasonable good-faith uncertainty, rather than disbelief, as to an incumbent union's majority status. See id., 2001 WL 314139, at *2. Petitioner immediately took advantage of this new standard, filing an RN petition on April 24, 2001. Petitioner contends that if its RN petition is granted, a conflict will arise if the RN election shows that a majority of employees do not support the union, but the arbitrator finds that petitioner unlawfully terminated the agreement.

The court first notes that petitioner's RN petition was filed only after the court rendered its opinion, and therefore was not a "prior" application to the agency. Second, an RN election, if granted, will not pose a conflict. An RN election merely gives an employer evidence as to a union's majority status. This evidence is a basis upon which an employer may refuse to negotiate a successor contract and announce that it will withdraw recognition from the union once the existing contract has terminated. Levitz makes clear, however, that an employer "may not lawfully withdraw recognition while a collective-bargaining agreement is in effect, because an incumbent union enjoys a conclusive presumption of majority status during the life of the contract." Id., 2001 WL 314139, at *19, n. 70. A finding by the arbitrator that petitioner did not properly terminate the agreement in the past will not inhibit petitioner's right to use the results of a timely RN election as a basis for withdrawal of recognition upon proper termination in the future.

Petitioner also argues that Vanderveer Estates Holding, LLC, 29-CA-24119 (N.L.R.B. April 27, 2001), is an intervening controlling decision requiring reconsideration of the court's decision. In fact, the NLRB's holding in Vanderveer was limited to the specific facts of the case. The opinion neither binds this court nor creates a danger of inconsistent rulings. Moreover, the NLRB's competence to interpret contracts does not mitigate the court's or arbitrator's competence to do the same.


Petitioner also argues that the court erred in failing to consider the high threshold petitioner may face in seeking to appeal an arbitration decision as opposed to an NLRB decision. This argument was not previously raised, and therefore may not be raised now. Furthermore, the standards for appeal from an arbitration decision impact both parties equally, and therefore pose no "prejudice" to petitioner.


Lastly, petitioner argues that respondent will suffer no prejudice if the court were to stay the arbitration proceeding pending the determination of petitioner's appeal to the NLRB. In fact, a stay will substantially harm respondent by virtue of undue delay. See UPS v. Mitchell, 451 U.S. 56, 63 (1981) (finding that prompt resolution of labor disputes is a leading tenet of national labor policy). Arbitration is currently scheduled to begin on May 9, 2001. If it is allowed to proceed, respondent will have resolution of its dispute within a matter of weeks. If arbitration is stayed pending resolution of the NLRB decision, respondents are unlikely to achieve resolution for months. (Drogin Aff. ¶ 5.) See also Woodlawn Cemetery v. Local 365, Cemetery Workers Greens Attendants Union, 930 F.2d 154, 157 (2d Cir. 1991) ("[W]e are wary of the possibility that this case, like countless others presented to the Board, will `enter a new dimension — one where time has little meaning.'" (quoting House Comm. on Gov't Operations, Delay, Slowness in Decisionmaking, and the Case Backlog at the National Labor Relations Board, H.R. Rep. No. 1141, 98th Cong., 2d Sess. 16 (1984))).


For the foregoing reasons, petitioner's motion to substitute counsel is granted. Petitioner's motion for reconsideration is denied.


Dated: New York, New York May 9, 2001.