The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HORSEPOWER ELECTRIC AND
MAINTENANCE CORP.,
Plaintiff, ORDER
. 1:23-cv-05707 (DG) (VMS)
-against-
NATIONAL LABOR RELATIONS
BOARD, an agency of the United States; and
TERESA POOR, in her capacity as Regional
Director of Region 29 of the National Labor
Relations Board,
Defendants.
Vera M. Scanlon, United States Magistrate Judge:
Plaintiff Horsepower Electric and Maintenance Corp. (“Plaintiff or “Horsepower”)
commenced this action against the National Labor Relations Board (“NLRB” or the “Board”)
and Teresa Poor in her capacity as Regional Director of Region 29 of NLRB (“Regional
Director”) (together, “Defendants”). See Compl. ECF No. 1.
Plaintiff asserted claims pursuant to the Fifth Amendment to the U.S. Constitution; 29
U.S.C. § 159(c)(1)(A); and 29 CFR §§ 102.15, 103.20(c). See id. The factual basis for
Plaintiff's complaint is that Region 29 unfairly delayed processing a decertification election
that occurred on March 9, 2023 (the “Election”). The Election’s results would “determine
whether a bargaining unit of [Plaintiff's] employees [can] continue to be represented by the
United Electrical Workers Union, Local 363, IUJAT” (the “Union”). Id. at 1. Plaintiff
contends that “the Union filed an unfair labor practice proceeding with designs on disrupting
the decertification election,” and that Region 29 has improperly refused to proceed with the
decertification. Id. at 2. According to Plaintiff, Region 29 also refuses to set a hearing “to
allow Horsepower to defend itself from the Union and the NLRB’s allegations of
wrongdoing.” Id. at 2, 4.
Before the Court is Shloime Spira (“Spira”)’s unopposed motion to intervene as of right
pursuant to Section 102.29 of the Board’s Rules and Regulations, the Administrative Procedure
Act, 5 U.S.C. §§ 554, 702, the Fifth Amendment to the U.S. Constitution, and Fed. R. Civ. P.
24(a)(2), for purposes of appearing as a full party in this matter. See Mot. to Intervene, ECF No.
15-1, Exh. 1. Beginning in November 2022, Spira, a Horsepower employee, collected signatures
for a decertification petition against the Union. On December 19, 2022, Spira filed the
decertification petition and prompted the Election. Id. at 2. In support of his motion to
intervene, Spira filed a Complaint in Intervention setting forth the claims he wishes to bring
against Defendants before this Court if his motion is granted. See Compl. In Intervention, ECF
No. 15-1.
For the reasons set forth below, the Court grants Spira’s unopposed motion to intervene
as of right.
I. LEGAL STANDARD
Spira moved to intervene as of right pursuant to Fed. R. Civ. P. 24(a)(2). See Mot. to
Intervene, ECF No. 15-1, Exh. 1.
Fed. R. Civ. P. 24(a)(2) on “Intervention of Right,” provides that,
(a) . . . [o]n timely motion, the court must permit anyone to intervene who:
* * *
(2) claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of the action may
as a practical matter impair or impede the movant’s ability to protect its
interest, unless existing parties adequately represent that interest.
A movant seeking to intervene as of right “must (1) timely file an application, (2)
show an interest in the action, (3) demonstrate that the interest may be impaired by the
disposition of the action, and (4) show that the interest is not protected adequately by the
parties to the action.” In re N.Y.C. Policing During Summer 2020 Demonstrations, 27 F.4th
792, 799 (2d Cir. 2022) (citation & quotations omitted). “In applying the Rule, courts must be
cognizant that its ‘various components . . . are not bright lines, but ranges—not all ‘interests’
are of equal rank, not all impairments are of the same degree, representation by existing
parties may be more or less adequate, and there is no litmus paper test for timeliness.’” Floyd
v. City of New York, 302 F.R.D. 69, 84 (S.D.N.Y. 2014) (citing United States v. Hooker
Chems. & Plastics Corp., 749 F.2d 968, 983 (2d Cir. 1984)). As discussed below, Spira is
entitled to intervene as of right for purposes of appearing as a party in Plaintiff’s case against
Defendant.
A movant seeking to intervene as of right must timely file an application. See In re
N.Y.C. Policing During Summer 2020 Demonstrations, 27 F.4th at 799. When analyzing
timeliness, courts generally consider: “[i] how long the applicant had notice of the interest
before it made the motion to intervene; [ii] prejudice to existing parties resulting from any
delay; [iii] prejudice to the applicant if the motion is denied; and [iv] any unusual
circumstances militating for or against a finding of timeliness.” Republic of the Philippines v.
Abaya, 312 F.R.D. 119, 122 (S.D.N.Y. 2015) (internal citations & quotations omitted).
“The Second Circuit has explained that for purposes of Rule 24(a)(2), an intervenor
must have a direct, substantial, and legally protectable interest in the property or transaction
that is the subject of the underlying action.” Id. at 123 (internal citations & quotations
omitted). “While the burden to demonstrate inadequacy of representation is generally
speaking minimal,” the Second Circuit has required “a more rigorous showing of inadequacy
in cases where the putative intervenor and a named party have the same ultimate objective.
Where there is an identity of interest . . . the movant to intervene must rebut the presumption
of adequate representation by the party already in the action.” Butler, Fitzgerald & Potter v.
Sequa Corp., 250 F.3d 171, 179-80 (2d Cir. 2001). “[E]vidence of collusion, adversity of
interest, nonfeasance, or incompetence may suffice to overcome the presumption of
adequacy.” Extenet Systems, LLC. v. Village of Kings Point, No. 22-1265, 2023 WL
4044076, at *2 (2d Cir. June 16, 2023) (citing id. at 180).
II. DISCUSSION
A. Timeliness
Plaintiff filed its Complaint on July 28, 2023, Compl. ECF No. 1, and Spira promptly
filed his motion to intervene on August 31, 2023. See Mot. to Intervene, ECF No. 15-1, Exh.
1. Because Spira filed his motion only a little over a month following Plaintiff’s Complaint,
the Court finds that Spira’s motion to intervene was timely and that there is no prejudice to
Defendant because there was no delay. For the reasons set forth below, Spira would be
prejudiced if his motion to intervene were denied, as his statutory rights and interests are
directly affected by the pending conclusion of the Election.
B. Interest In the Action
Spira has a direct, substantial and legally protectable interest in the outcome of the
election and proceedings related thereto. Spira’s motion to intervene is based on the same
factual occurrences and the same causes of action as the ones Plaintiff asserts in its Complaint.
See Compl. In Intervention, ECF No. 15-1 and Compl., ECF No. 1. Both Spira and Plaintiff
contend that (1) by issuing a complaint before the NLRB without scheduling a hearing date as
required by the Board’s Rules and Regulations, Region 29 acted in a manner clearly contrary
to statutory mandate; and (2) Region 29 violated Spira and Plaintiff’s respective due process
rights. Id. As explained below, Spira would be prejudiced if his motion to intervene were
denied, as his statutory rights and interests are directly affected by the pending conclusion of
the Election.
Thus, Spira has asserted a sufficient interest in this action to justify intervention.
C. Impairment of Interest by Disposition of the Action
Spira has his own protectable interest in the proceeding. Spira’s causes of action
against the NLRB are analogous to Plaintiff’s but his participation in this action would not be
purely duplicative of Horsepower’s claims. NLRB itself has previously held that “[t]he
employer has its self-interest to watch over and those interests are not necessarily aligned with
those of its employees . . . the employees can take their own steps to protect their interests if
they choose.” Corrections Corp. of Am., 347 NLRB 632, 633 n.3 (2006).
Spira’s motion to intervene alludes to “several tactical considerations Horsepower may
take [to] harm Spira’s rights without directly opposing his position.” Mot. to Intervene, ECF
No. 15-1, Exh. 1, at 11. As an example, Spira argues that Horsepower and Defendants may
make “factual stipulations that effectively limit the testimony and evidence introduced at the
hearing, or they may make strategic decisions to forego the introduction of relevant
testimony.” Id. This would prevent Spira, and, consequently, Horsepower’s employees, from
having a voice “in a case that concerns their own decertification petition and representational
desires.” Id.
As Horsepower’s employee, Spira’s interests are independent of Horsepower’s and his
individual rights may be impaired if he cannot independently appear in this proceeding.
D. Lack Of Adequate Protection Of Interest By The Parties
Spira must also show that his interests are inadequately represented by Horsepower in
this matter.
In this case, the Court finds that Spira and Plaintiff do not have an “identity of
interest.” While they bring the same causes of action before this Court, Horsepower has its
own self-interest to protect. “Horsepower’s economic interests could lead it to settle the . . .
case to save itself the cost and disruption of further litigation. For business or financial
reasons, any rational employer might choose to settle . . . and accept an unpopular union
despite proof of the employees’ opposition to union representation.” Mot. to Intervene, ECF
No. 15-1, Exh. 1, at 11. In contrast, Spira may wish to see the decertification dispute to the
end, as he has shown by his initiative to date in commencing the process that he no longer
wishes to be represented by the current Union. His economic interests are not identical to his
employer’s. The Court finds that Spira sufficiently showed that his interests are inadequately
represented by Horsepower in this matter due to a risk of concession by the employer.
III. CONCLUSION
For the reasons discussed herein, Spira’s unopposed motion to intervene as of right is
granted.
Dated: Brooklyn, New York
October 23, 2023
Vera M. Scanlon
VERA M. SCANLON
United States Magistrate Judge