THOMAS M. DURKIN, District Judge.
Paul Hitterman, the Acting Regional Director of Region 13 of the National Labor Relations Board (the "Director"), has filed a petition seeking a preliminary injunction requiring Universal Security, Inc. to rehire two employees, Marcie Barnett and Sadaf Subijano, while administrative proceedings seeking the employees' reinstatement are proceeding before the National Labor Relations Board (the "Board"). Universal provides security services at O'Hare Airport, where Barnett and Subijano worked as security guards. The Director argues that they were fired because they participated in union organizing activities and spoke to the press about a strike and their working conditions, in violation of Section 8 of the National Labor Relations Act (the "Act"). Universal argues that they fired Barnett and Subijano because their statements to the press revealed "sensitive security information" ("SSI") in violation of federal regulations, and that by publicizing their identities as airport security guards, Barnett and Subijano became vulnerable to influence by those seeking to attack the airport. For the following reasons, the petition is granted.
The Service Employees International Union (the "Union") filed charges with the Board against Universal alleging, among other charges, that Universal violated Section 8 of the Act by firing Barnett and Subijano. The Board investigated the charges and based on that investigation the Director filed a complaint with the Board against Universal on December 23, 2016. Universal sought summary judgment before the Board, which the Board rejected on April 3, 2017. That same day, the Board authorized the Director to seek injunctive relief. The Director filed this petition three days later on April 6, 2017. A hearing was held before an administrative law judge on May 9-10, 2017. The testimony and exhibits from that hearing constitute the record that is the basis for the Director's petition for injunction relief here. A decision on the merits from the administrative law judge is pending. This Court heard oral argument on June 29, 2017.
Through 2016, the Union was working to unionize Universal employees. According to Sarah Sahed, the Union's Midwest organizing coordinator, Barnett and Subijano were leaders in the unionization campaign because of "their participation through attending meetings, speaking to their coworkers, moving petitions, attending events, and actions inside and outside of the airport." R. 23-2 at 123 (122:1-4).
Barnett and Subijano participated in a strike on March 31, 2016, during which they made statements to the media. Barnett made the following statement, which was transcribed and posted on the internet:
R. 23-5 at 145. The following statements were attributed to Subijano by various newspapers:
Id. at 152 (Chicago Tribune).
Id. at 155-56 (Chicago Sun-Times).
Id. at 158 (Washington Post).
Both Barnett and Subijano were fired on April 13, 2016. R. 23-5 at 164-65. Their termination letters explained that they were fired because they "repeatedly spoke[] to a number of media outlets over the past several weeks regarding the details of [their] security work at O'Hare . . . . [and their] comments have included sensitive security information." Id. The termination letters did not specifically reference any statements in particular.
In August 2016, the Transportation Security Administration ("TSA") issued a "Warning Notice" to Universal in connection with Barnett's and Subjiano's statements. The federal regulations governing the TSA define "Warning Notice" as a notice "that recites available facts and information about the incident or condition and indicates that it may have been a violation," but "does not constitute a formal adjudication of the matter." 49 C.F.R. 1503.301(b)(1). The warning notice the TSA issued to Universal stated that
R. 23-5 at 166. The Chicago Tribune article referenced in the TSA's warning notice included a photograph of Subijano and identified her as a "security officer" at O'Hare. R. 23-4 at 502. The article quoted the termination letter Universal provided Subjiano as stating that she was fired because her "comments [to the media] have included sensitive security information." Id. at 503. The article went on to report that "[i]n comments to the Tribune [on] March 31, Subijano complained about a lack of paid sick days, retaliation for organizing and inadequate security training. She said officers have only a radio to communicate with the command center." Id.
TSA also issued "Warning Notices" to Barnett and Subijano through their counsel at the Union. These notices stated that TSA had conducted an "investigation . . . in regard to media reports indicating your client disclosed SSI to the media resulting in [their] termination from [Universal]." R. 23-5 at 168-69. The notices provided that the warning was being issued because "[t]his incident may have represented a failure on your part to comply with 49 CFR 1520.9(c), which requires that when a covered person becomes aware that SSI has been released to unauthorized persons, the covered person must promptly inform TSA. . . ." Id. A "covered person" under 49 C.F.R. § 1520.7(j) includes "[e]ach person who has access to SSI," which plausibly includes Barnett and Subijano.
Universal's counsel represented at oral argument that Universal employs about 200 people at O'Hare. The Union invited Universal employees to at least seven meetings leading up to the strike on March 31, 2016. See R. 23-4 at 430-39. An average of 12 Universal employees attended those seven meetings. See id.; R. 23-2 at 111-19 (110:6-118:20). The strike on March 31, 2016 was attended about 100 O'Hare employees, and between 15 to 20 of the 100 were Universal employees. See R. 23-2 at 120-22 (119:1-121:1).
After Barnett and Subijano were fired on April 13, 2016, the Union held 13 meetings between May 20 and November 1, 2016. See R. 23-4 at 448-96; R. 23-2 at 127-142 (126:7-141:23). An average of 2.15 Universal employees attended each meeting. See id. The Union organized another O'Hare strike in November 2016, which was attended by approximately 300 O'Hare workers. R. 23-2 at 145 (144:7-10). None of the workers who participated in the strike were employed by Universal. Id. (144:13-15).
The Director seeks a preliminary injunction ordering Universal to rehire Barrett and Subijano until the Board finally adjudicates the Union's charges against Universal. "Under [Section] 10(j) of the Act, courts may grant temporary injunctions pending the Board's resolution of unfair labor practice cases." Harrell v. Am. Red Cross, Heart of Am. Blood Services Region, 714 F.3d 553, 556 (7th Cir.2013). "The idea underpinning 10(j) is that a district court can issue a speedy preliminary injunction to protect a union where the effective enforcement of [the Act] is threatened by the delays inherent in [the Board's] dispute resolution process." Ohr v. Latino Exp., Inc., 776 F.3d 469, 472 (7th Cir. 2015). "The goal is to protect the integrity of the collective bargaining process and to preserve the Board's power to provide effective remedies for violations despite the `notoriously glacial' pace of Board proceedings." Lineback v. Irving Ready-Mix, Inc., 653 F.3d 566, 570 (7th Cir. 2011).
The Seventh Circuit has held that courts applying Section 10(j) should use "the same factors to which [they] look[] in other contexts when deciding whether to grant injunctive relief." Lineback v. Spurlino Materials, LLC, 546 F.3d 491, 499-500 (7th Cir. 2008). Those factors are the following: "(1) [the Board] has no adequate remedy at law; (2) the Union will be irreparably harmed without interim relief, and that potential harm to the Union outweighs potential harm to the employer; (3) public harm would occur without the relief; and (4) the Board has a reasonable likelihood of prevailing." Am. Red Cross, 714 F.3d 553, 556 (7th Cir. 2013). "The Director bears the burden of establishing the first, third, and fourth of these circumstances by a preponderance of the evidence." Spurlino Materials, 546 F.3d at 500. By contrast, the extent of the Director's burden to demonstrate irreparable harm varies inversely with the strength of the Director's case on the merits. Id. (that burden "is evaluated on a sliding scale"); see also Hoosier Energy Rural Elec. Co-op., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) ("the more net harm an injunction can prevent, the weaker the plaintiff's claim on the merits can be while still supporting some preliminary relief"). Ultimately, "plaintiff seeking preliminary relief [must] demonstrate that irreparable injury is likely in the absence of an injunction." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 375 (2008) (emphasis in original). Since the Director's burden to show that any harm the Union faces outweighs any harm Universal faces is evaluated in light of the strength of the Director's case on the merits, the Court will balance the harms last.
"In § 10(j) cases, the `adequate remedy at law' inquiry is whether, in the absence of immediate relief, the harm flowing from the alleged violation cannot be prevented or fully rectified by the final Board order." Am. Red Cross, 714 F.3d at 557. "The longer that an employer is able to . . . avoid bargaining with a union, the less likely it is that the union will be able to . . . represent employees effectively once the NLRB issues its final order." Id. "This risk is particularly true in cases involving fledgling unions, where the passage of time is especially critical." Spurlino Materials, 546 F.3d at 501.
The Director contends that there is no adequate remedy a law for the chilling effect on the other employees' willingness to participate in Union activities in light of Barnett's and Subijano's terminations after speaking out at a strike. R. 26 at 5. As noted above, Universal employees have participated in Union activities at a drastically reduced rate since Barnett and Subijano were fired. Most notable, nearly 20 of Universal's employees participated in the strike on March 31, 2016, but none participated in a similar strike of O'Hare workers in November 2016. Additionally, the Union representative testified that fourteen individuals told her they feared retaliation if they continued to participate in the unionization efforts.
This evidence demonstrates that harm to the Union's organizing activities has already occurred. It is likely that without immediate injunctive relief, the Board's action to enforce the Act will be ineffective. Thus, the Director has demonstrated harm for which there is no adequate remedy at law.
"The interest at stake in a § 10(j) proceeding is the public interest in the integrity of the collective bargaining process." Am. Red Cross, 714 F.3d at 557. "The public interest is furthered, in part, by ensuring that an unfair labor practice will not succeed because the Board takes too long to investigate and adjudicate the charge." Spurlino Materials, 546 F.3d at 502.
Here, the harm posed to the Union by allowing Barrett's and Subijano's terminations to stand is readily apparent. As discussed, the evidence shows that organizing activity has already become less popular among Universal's employees since the terminations. It is in the public interest to return Barnett and Subijano to their positions in order to send a message to Universal's employees that federal law protects their organizing activities.
"A party moving for preliminary injunctive relief need not demonstrate a likelihood of absolute success on the merits. Instead, [the party] must only show that [its] chances to succeed on [its] claims are `better than negligible.'" Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1046 (7th Cir. 2017) (quoting Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999)). The Seventh Circuit has described this as "a low threshold." Whitaker, 858 F.3d at 1046. Success on the merits in a complaint for violation of Section 8 of the Act requires the Director to prove "that the terminations were motivated by a desire to thwart protected activity." N.L.R.B. v. Electro-Voice, Inc., 83 F.3d 1559, 1568 (7th Cir. 1996). "Once the Director meets [this] burden, the burden shifts to the employer to demonstrate . . . that [it] would have terminated the employees irrespective of the protected activity." Id.
There is no dispute that Barnett and Subijano were fired because of the statements they made to the press during the March 31 strike. The dispute here is about the reason Universal decided those statements constituted a fireable offense: was it because the statements were made as part of Barnett's and Subijano's activities as union organizing leaders, or because they revealed SSI? If there is a reasonable argument that the statements did not reveal SSI, then there is an equally reasonable argument that Barnett and Subijano were not fired because they revealed SSI, but because of their union involvement.
A number of facts undermine Universal's explanation for the terminations. First, it is not clear that Barnett and Subijano revealed SSI. Notably, the termination letters did not specifically identify what SSI Barnett and Subijano revealed. Universal now argues that they revealed SSI in that they "identified themselves as individuals with unescorted access to secure areas of the airport, disclosed training materials and methods, and identified the secure communication equipment used on the airfield." R. 27 at 2. The relevant federal regulation defines SSI in relevant part as the following:
49 C.F.R. § 1520.5(b).
Subijano's statements, as quoted in press articles, did not mention her access to secure areas of the airport. She stated that she was equipped with "nothing . . . but a radio," but she did not reveal any "specifications" about the radio or how it is "tested," as referenced in subsection (4)(ii) of the regulation quoted above. The article discussed a training video, and implied that it was the training video Subijano watched. But there are no quotes from Subijano about the video in the articles. Moreoever, the article notes that the video is publicly available, so it is not reasonable to say that Subijano "revealed" any information about her training even if she was the source of the information about the video.
Barnett did not discuss her training or equipment at all. She stated that she guarded "entranceways at the airport," including "secure doors" used by employees and vendors. Barnett, however, did not state that she was posted at secure entrances by herself, and she did not reveal whether she has complete discretion to permit people to enter secure airways. Thus, her statements do not unambiguously reveal that she has or can provide "unescorted" access to secure areas. Furthermore, Universal security guards like Barnett and Subijano wear badges that display their names. See R. 23-2 at 37-38 (36:20-37:17) (Barnett testimony); id. at 69 (68:2-10) (Subijano testimony); R. 23-3 at 69 (348:2-14) (testimony of Tim Mayberry, Universal's Project Manager for Airport Systems). Thus, their identities as airport security guards were already publicly available before they made their statements to the press. Universal's contention that it thought Barnett's and Subijano's identities were SSI is belied by that fact Universal requires them to display their identities publicly.
Universal argues that the warning notices TSA issued to it, Barnett and Subijano, demonstrate that TSA believes Barnett's and Subijano's statements disclosed SSI. It may be that TSA would find that the statements disclosed SSI. But the "warning notices" do not constitute a final adjudication of any issue, nor do they include any analysis of Barnett's and Subijano's statements with respect to the regulatory definition of SSI. Thus, the TSA's warning letters are not dispositive evidence the TSA's opinion on this issue.
Rather than serve as evidence that Barnett and Subijano disclosed SSI, the TSA's warning notices state that Universal may have failed to follow federal regulations setting forth Universal's obligations in a case of SSI disclosure. The TSA notices indicate that Universal is under an obligation to report disclosure of SSI to TSA, and that the Chicago Tribune article suggested that Universal failed to fulfill this obligation. At oral argument, Universal's counsel argued that Universal was "stunned" by Barnett's and Subijano's statements, and because they were so out of the ordinary, it took two weeks for Universal to determine the appropriate course of action. Universal's failure, after a two week investigation, to discover that it had an obligation to report the disclosure of SSI to TSA, undermines Universal's contention that it fired Barnett and Subijano because they disclosed SSI. There is a reasonable argument that if Universal had in fact made a determination that Barnett and Subijano disclosed SSI, then Universal would also have fulfilled its obligation to disclose the incident to TSA. This failure calls into question Universal's motives in firing Barnett and Subijano.
Universal argues that Barnett's and Subijano's statements threatened the safety of the airport. But the two week delay in their dismissal undermines this argument as well. Universal argues that it is primary concerned with the safety implications of Barnett and Subijano publicly disclosing their identities as airport security guards. But this conclusion requires no significant analysis. If public disclosure of employees' identities is such a clear and present security risk, Universal should have fired Barnett and Subijano the moment their identities appeared in the newspaper (and not required security guards to wear nametags). But Universal waited two weeks to fire them. A statement disclosing information that clearly implicated airport security should have resulted in immediate termination, not the two weeks of consideration that occurred here.
The ambiguity of the statements in question, and the evidence undermining Universal's alleged motives, create a reasonable argument that Universal terminated Barnett and Subijano because of their public involvement in union organizing, and not because they disclosed SSI. This is sufficient to demonstrate at least a "better than negligible" chance of success on the merits.
"[T]he discharge of active and open union supporters risks a serious adverse impact on employee interest in unionization and can create irreparable harm to the collective bargaining process." Frankl v. HTH Corp., 650 F.3d 1334, 1363 (9th Cir. 2011). In addressing whether there is an adequate remedy at law, the Court has already reviewed evidence indicating that Barnett's and Subijano's terminations chilled union organizing activity among Universal's employees at O'Hare. This evidence also serves to demonstrate that the Union is likely to suffer irreparable harm.
Universal contends, however, that the Director's delay in filing for the injunction and his actions to postpone the ALJ hearings shows this is not a case where a 10(j) injunction is appropriate or necessary. See R. 27. But the nearly 12 month delay in this case between Barnett's and Subijano's terminations and the filing of the Director's petition for injunctive relief is not unusual. See Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 299 (7th Cir. 2001) (two years); Frankl, 650 F.3d at 1363 (three years); Overstreet v. El Paso Disposal, L.P., 625 F.3d 844, 850, 856 (5th Cir. 2010) (19 months); Muffley v. Spartan Mining Co., 570 F.3d 534, 544-45 (4th Cir. 2009) (18 months); Hirsch v. Dorsey Trailers, 147 F.3d 243, 248-49 (3d Cir. 1998) (14 months).
Universal cites a court in this district denying a petition, in part, because the Board's "knowledgeable [15 month] delay implies that any harm the . . . employees face is neither urgent nor exclusive to administrative delay." Sung Ohr v. Arlington Metals Corp., 148 F.Supp.3d 659, 674 (N.D. Ill. 2015). That case, however, concerned an already-established union from which the employer withdrew recognition as a tactic to end collective bargaining negotiations. The Board in that case sought an injunction ordering the employer back to the bargaining table. The court in Arlington Metals noted that such an order would not work to "preserve the status quo," but would "accelerate[] what at this point only may be the ultimate remedy." Id. at 674. This is distinguished from the case here where there is evidence that Universal's terminations of Barnett and Subijano are an existential threat to a fledging union. Additionally, in Arlington Metals, the administrative law judge had already issued a decision in the union's favor by the time the Board sought an injunction. The district court found that "the normal administrative process which is well under way will constitute adequate relief," so that "time is not of the essence." Id. at 675. By contrast, here the administrative hearing is only recently concluded and it is impossible to predict when the administrative law judge will issue a decision. The fragility of the process to unionize Universal's employees, combined with the fact that the administrative proceedings are not as far along, distinguishes this case from Arlington Metals.
For these reasons, the Court finds that the Director has demonstrated a likelihood of irreparable harm, despite the twelve month delay between the incident at issue and the filing of the petition for injunctive relief.
The demonstrated harm to union organizing activity protected by the Act must be balanced against any potential harm Universal faces from reinstatement. Universal argues that a reinstatement order would harm it because it will be left "unable to effectively enforce federal and state laws related to SSI and confidential information." R. 27 at 15. But this argument assumes Universal's conclusion that Barnett and Subijano disclosed SSI. Whether this conclusion was justified is what is at issue in this case. Universal's ability to enforce relevant regulations will be protected if the Board and federal court ultimately determine that those regulations take precedence over laws protecting labor organizing. Thus, this asserted harm carries no weight.
At oral argument Universal also argued that reinstatement might require it to terminate current employees. But Universal employs almost 200 employees at O'Hare, and Universal's counsel admitted at oral argument that there is certainly an "ebb and flow" to Universal's staff at O'Hare. For these reasons, the Court does not consider Universal's burden to make personnel decisions a serious potential harm to Universal.
Although not a harm to Universal as an employer, Universal argues that reinstatement will threaten the safety of the airport. As discussed, Universal's own actions belie this argument. Furthermore, if safety is truly implicated, the Court would expect the TSA to have said so. None of the three warning notices TSA issued in this case address Barnett's or Subijano's potential continued employment. Nor has TSA intervened in this case—whether as a party or amicus—to address that issue with the Court.
For these reasons, the Court finds that the balance of the harms tips almost entirely in the Director's favor. Accordingly, the Director has more than met his burden to demonstrate likelihood of success on the merits.
For the foregoing reasons, the Petition [1] is granted.
The Respondent, Universal Security, Inc., its officers, agents, successors and assigns, shall cease and desist from:
Further, Respondent, its officers, agents and representatives shall: