NLRB wins injunction to end Brooklyn lockout of 70 apartment workers who faced eviction and loss of health care

A federal judge yesterday issued a temporary injunction ordering the owners of the Flatbush Gardens apartment complex in Brooklyn to end a months-long lockout of more than 70 unionized porters and maintenance workers and resume bargaining “immediately” with the union while the case moves through the NLRB process.
The injunction was sought by NLRB Brooklyn Regional Director James Paulsen, who issued a complaint against Renaissance Equity Holdings, LLC in May alleging various unfair labor practices, including failure to bargain in good faith with the workers’ union, the Service Employees International Union, Local 32BJ. The case is currently pending before an NLRB administrative law judge.
In his decision, Judge Brian M. Cogan of the U.S. District Court in the Eastern District of New York said he granted the injunction, in part, to prevent the locked-out employees from losing health insurance coverage and being evicted from their apartments.
The order restores all previous terms and conditions of employment except for reducing  the wage rates of employees because of the Employer’s claimed financial hardship.  Employees were locked out in late November 2010.
Judge Cogan denied a motion to dismiss the injunction based on an argument by Renaissance that the January 2012 recess appointments of three National Labor Relations Board members were improper, writing that, “In the interest of judicial restraint, the Supreme Court has counseled that a court should not decide a constitutional question unless the question is absolutely necessary to the court’s decision.” 
Judge Cogan concluded that resolution of the constitutional question was unnecessary because the injunction petition was separately authorized by the Acting General Counsel under powers delegated by the Board when it had an undisputed quorum.  Because the injunction petition was approved by both the Board and the Acting General Counsel, “one of these approvals must have been valid regardless of whether the President’s appointments to the Board were constitutional.” 
In relying on the Acting General Counsel’s authorization, Judge Cogan rejected arguments by Renaissance that the delegation of injunction powers to the General Counsel was invalid or lapsed if the Board lost its quorum.