MARGARET M. MORROW, District Judge.
On December 12, 2014, Mori Rubin, regional director of Region 31 of the National Labor Relations Board, acting for and
Vista operates a nursing facility located in Los Angeles, California. The facility is divided into a skilled nursing division that goes by the Vista name, and an assisted living division known as Casa Del Mar.
In early August 2013, the Service Employees International Union-Long Term Care Workers ("SEIU-ULTCW" or the "union") began organizing employees at Vista.
Valdivia admitted that by August 8, 2013, she had "learned that there was some kind of union activity going on."
On October 11, 2013, union representatives Jose Manzano and Edward Gutierrez held two meetings at a McDonalds. The first took place at approximately 1:00 pm. Two Vista employees were present: Silvia Figueroa and Lerma Davis; both signed union authorization forms.
On October 14, 2013, at approximately 3:00 pm, just prior to presentation of the union petition, Valdivia stopped Maria Ramirez and asked her about the union authorization cards that were being circulated
Valdivia and Warner, the director of nursing, held meetings with several employees after the union petition was presented, and announced that the company would no longer tolerate employees arriving after the seven minute grace period at the start of their shift, and that employees who arrived late would be subject to discipline, including termination.
Petitioner contends that from October 17 to 21, 2013, Valdivia polled and interrogated employees. Specifically, petitioner asserts that Valdivia gave employees a form to sign asking them to indicate whether they had voluntarily or involuntarily signed the union petition.
Petitioner alleges that on October 23, 2013, Cuellar impliedly threatened Meza by telling him that Valdivia was "well prepared" to respond to the union organizing and that the employees "should all be careful;" indeed, Cuellar purportedly went so far as to say that she "felt sorry for [the employees] because Valdivia was so well-prepared against [them]."
In an October 9, 2014 letter to the NLRB, Vista's lawyer stated that the entire facility might be forced to close if the employees were unwilling to accept the company's settlement offers.
Petitioner contends that Martha Aparicio and Delfina Sanchez were discharged in order to discourage employees from engaging in union activities. On October 6, 2013, these certified nursing assistants ("CNAs") were scheduled to work their usual 11:00 p.m. to 7:00 a.m. shift at Vista, together with charge nurse Jennifer Abaunza and CNA Maria Lopez. At approximately 3:50 a.m. on October 7, 2013,
The next day, Warner called Ingrid Castillo, a charge nurse, into her office to discuss the incident because she believed that Castillo had been involved. After the meeting, Castillo told the CNAs that they needed to take turns taking naps in the future.
Aparicio participated in the presentation of the union petition on August 14, 2013, which included both her and Sanchez's names, but not Maria Lopez's name.
From October 25 to 28, 2013, Vista laid off seven of the eight employees in its housekeeping department, replacing them with five individuals provided by an independent contractor, Pro-Clean.
On approximately October 10, 2013, Vista gave two employees a 50 cent an hour raise.
In January 2014, Warner, who was still director of nursing at the time, sent a series of text messages to Remedios Lopez. The messages stated:
Several Vista employees testified that they were scared they would lose their jobs because they supported the union. On October 29, 2013, Maria Ramirez stated that "[a]s a result[ ] of [her] coworkers' termination, [she] . . . fear[ed] . . . losing [her] job because [she] supported the [u]nion."
Elisa Mayorga testified she heard "Reyna [Artola] say that she [was] afraid she was going to lose her job just like [Mayorga and the others] did"; she also reported hearing Remedios Lopez, Reyna [Artola], and Maria Ramirez state that they were "afraid to wear the [u]nion shirts now."
Marcos Salvador and Reyna Artola testified that they both felt they could be fired for supporting the union.
As noted, the union filed a petition for an election to represent certain of Vista's employees on October 17, 2013.
On March 21, 2014, Vista filed a complaint seeking to enjoin the NLRB from enforcing certain investigatory subpoenas.
On September 26 and October 2, 2014, the union filed two new charges against Vista, alleging § 8(a)(1), (3), and (5) violations.
Vista has asserted several objections to the evidence petitioner adduced in support of the petition.
"Section 10(j) permits a district court to grant relief `it deems just and proper.'" 29 U.S.C. § 160(j). Frankl v. HTH Corp., 650 F.3d 1334, 1355 (9th Cir. 2011). "To decide whether granting a request for interim relief under Section 10(j) is `just and proper,' district courts consider the traditional equitable criteria used in deciding whether to grant a preliminary injunction." McDermott v. Ampersand Publ'g, LLC, 593 F.3d 950, 957 (9th Cir. 2010).
"A preliminary injunction is an extraordinary and drastic remedy." Munaf v. Geren, 553 U.S. 674, 689, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008). Thus, a district court should enter a preliminary injunction only "upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Such a showing requires that the plaintiff establish he "is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter, 555 U.S. at 20, 129 S.Ct. 365; see Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir.2009) ("Under Winter, plaintiffs seeking a preliminary injunction must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest"); see also Johnson v. Couturier, 572 F.3d 1067, 1081 (9th Cir.2009) ("[P]reliminary injunctive relief is available only if plaintiffs [also] `demonstrate that irreparable injury is likely in the absence of an injunction,'" quoting Winter, 555 U.S. at 22, 129 S.Ct. 365);
Following Winter, the Ninth Circuit articulated an alternate formulation of the sliding scale test. Post-Winter, serious questions going to the merits and a balance of hardships that tips sharply in favor of the plaintiff can support issuance of a preliminary injunction if plaintiff also shows that there is a likelihood of irreparable injury and the injunction is in the public interest. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.2011) ("To the extent prior cases applying the `serious questions' test have held that a preliminary injunction may issue where the plaintiff shows only that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor, without satisfying the other two prongs, they are superseded by Winter, which requires the plaintiff to make a showing on all four prongs. . . . But the `serious questions' approach survives Winter when applied as part of the four-element Winter test. That is, `serious questions going to the merits' and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest").
If the harm to plaintiff is merely monetary, it "will not usually support injunctive relief." American Trucking Associations, 559 F.3d at 1057. See also California Pharmacists Association v. Maxwell-Jolly, 563 F.3d 847, 851-52 (9th Cir.2009) ("Typically, monetary harm does not constitute irreparable harm. . . . Economic damages are not traditionally considered irreparable because the injury can later be remedied by a damage award" (emphasis original)). In addition, harm that is "merely speculative" will not support injunctive relief, "although a loss of goodwill and reputation can do so." American Trucking Associations, 559 F.3d at 1057.
As the Winter Court noted, "[a] preliminary injunction is an extraordinary remedy never awarded as of right." Winter, 555 U.S. at 55, 129 S.Ct. 365. "In each case, a court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Amoco Production Co. v. Village of Gambell, Alaska, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). "In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Weinberger v. Romero-Barcelo,
"The plaintiff[ ] bear[s] the initial burden of showing that [issuance of an] injunction is in the public interest." Stormans, 586 F.3d at 1139 (citing Winter, 555 U.S. at 27, 129 S.Ct. 365). The district court "need not consider public consequences that are `highly speculative.'" Id. (quoting Golden Gate Restaurant Association v. City & County of San Francisco, 512 F.3d 1112, 1126 (9th Cir.2008)). "In other words, the court should weigh the public interest in light of the likely consequences of the injunction. Such consequences must not be too remote, insubstantial, or speculative and must be supported by evidence." Id. "When the reach of an injunction is narrow, limited only to the parties, and has no impact on non-parties, the public interest will be `at most a neutral factor in the analysis rather than one that favor[s] [granting or] denying the preliminary injunction.'" Stormans, 586 F.3d at 1138-39 (quoting Bernhardt v. Los Angeles County, 339 F.3d 920, 931 (9th Cir.2003)). See also Sierra Forest Legacy, 577 F.3d at 1022 ("When deciding whether to issue a narrowly tailored injunction, district courts must assess the harms pertaining to injunctive relief in the context of that narrow injunction"). "If, however, the impact of an injunction reaches beyond the parties, carrying with it a potential for public consequences, the public interest will be relevant to whether the district court grants the preliminary injunction." Id. at 1139 (citing Sammartano v. First Judicial District Court, 303 F.3d 959, 965 (9th Cir.2002)). "[When] an injunction is asked which will adversely affect a public interest . . . the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff." Weinberger, 456 U.S. at 312-13, 102 S.Ct. 1798.
As a threshold matter under Winter, the moving party must establish a likelihood of success on the merits of his claims before a court can grant a preliminary injunction. Winter, 555 U.S. at 20, 129 S.Ct. 365. As noted, in the Ninth Circuit, this threshold showing can be made by demonstrating that there are serious questions going to the merits of the claims. If the moving party is unable to establish this element, the request for a preliminary injunction must be denied and the court need not review whether the remaining requirements for issuance of a preliminary injunction are satisfied. See Dudum v. City and County of San Francisco, Case No. 10-00504-RS, 2010 WL 1532365, *11 (N.D.Cal. Apr. 16, 2010); Jones v. Felker, Case No. 08-0096-FCD-EFB, 2010 WL 582131, *2 (E.D.Cal. Feb. 12, 2010).
When considering "a § 10(j) petition, likelihood of success is a function of the probability that the Board will issue an order determining that the unfair labor practices alleged by the Regional Director occurred and that this Court would grant a petition enforcing that order, if such enforcement were sought." Frankl, 650 F.3d at 1355. "[I]n evaluating the likelihood of success, `it is necessary to factor in the district court's lack of jurisdiction over unfair labor practices, and the deference accorded to NLRB determinations by the courts of appeals.'" Id. (quoting Miller v. California Pac. Med. Ctr., 19 F.3d 449, 460 (9th Cir.1994)). "It is, after all, the Board and not the courts, which `has primary responsibility for declaring federal labor policy.'" Id. In light of this deference, "it remains the case—whether or not the Board itself approved the filing of the § 10(j) petition—that the regional director in a § 10(j) proceeding `can make a threshold showing of likelihood of success by producing some evidence to support the unfair labor practice charge, together with an arguable legal theory.'" Id. (quoting Miller, 19 F.3d at 460 (emphasis added)); Scott v. Stephen Dunn & Associates, 241 F.3d 652, 662 (9th Cir.2001) ("[T]o satisfy the `likelihood of success' prong of the traditional equitable test, [the Director] need only show a better than a negligible chance of success.").
Conflicting evidence, moreover, "does not preclude the Regional Director from making the requisite showing for a section 10(j) injunction." Frankl v. HTH Corp., 693 F.3d 1051, 1063 (9th Cir.2012); Garcia ex rel. N.L.R.B. v. S & F Mkt. St. Healthcare, LLC, No. CV 12-1773 PA (VBKx) 2012 WL 1322888, *6 (C.D.Cal. Apr. 17, 2012) (same); Baudler v. American Baptist Homes of the West, 798 F.Supp.2d 1099, 1107-08 (N.D.Cal.2011) (finding that respondent employer's evidence disputing the union's assertion that respondent had replaced strikers to teach them a lesson did not preclude the Regional Director from showing a likelihood of success because "if credited by a fact-finder, [the union's] account would demonstrate an improper purpose in hiring permanent replacements.").
Petitioner contends that overwhelming evidence and well-settled Board law support the unfair labor practices charges. As a result he asserts that it is likely Vista will be found to have violated sections 8(a)(1), (3), and (5) of the NLRA,
Section (8)(a)(1) prohibits employers from interfering with, restraining, or coercing "employees in the exercise of rights guaranteed in 29 U.S.C. § 157 ("§ 7")". 29 U.S.C. § 158(a)(1). Section 157 rights include the right of self-organization, the right to form, join, or assist labor organizations, and the right to engage in other concerted activities for the purpose of collective bargaining or other
Petitioner first argues that Vista violated § 8(a)(1) by instructing employees not to talk to union organizers. As evidence of this, he cites Valdivia's admission under oath that she "learned that there was some kind of union activity going on" by August 8, 2013,
Valdivia's self-serving declaration, moreover, is entitled to little weight. See N.L.R.B. v. Pac. Grinding Wheel Co., 572 F.2d 1343, 1347 (9th Cir.1978) ("It is also well established that the Board need not treat self-serving declarations of an employer as conclusive, even if not contradicted by any direct testimony in the record"). Marcos Salvador reported that Valdivia told five Vista employees "thieves" would visit them and "would identify themselves as from the [u]nion."
Petitioner next asserts that Vista violated § 8(a)(1) by polling and interrogating employees about their union activities and sympathies. As respects polling, petitioner contends that Vista polled employees by preparing a form that it gave to employees and asked that they state whether they had voluntarily signed the union petition. Vista disputes this finding; it contends that the letter was not a poll because employees were not forced to return it.
Vista contends that employees were not required to return the form; no evidence supports this assertion, and it is belied by employee testimony.
"[A]ny attempt by an employer to ascertain employee views and sympathies regarding unionism generally tends to cause fear of reprisal in the mind of the employee if he replies in favor of unionism and, therefore, tends to impinge on his Section 7 rights." Struksnes Constr. Co., 165 NLRB 1062 (1967). See also Mingtree Rest., Inc. v. N.L.R.B., 736 F.2d 1295, 1297 (9th Cir.1984) (observing that "[i]n Struksnes Construction Co., Inc., 165 N.L.R.B. 1062 (1967), the Board adopted guidelines for employer polling of employee union sentiment during a union's initial demand for recognition" and applying Struksnes), disapproved on other grounds in Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 364, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998). In Struksnes, the Board concluded that "a poll taken while a petition for a Board election is pending does not . . . serve any legitimate interest of the employer that would not be better served by the forthcoming Board election. In accord with long-established Board policy, therefore, such polls [] continue to be found violative of Section 8(a)(1) of the [NLRA]." Struksnes, 165 NLRB at 1063.
Petitioner contends that Vista's polling was per se unlawful under Struksnes, because it took place between October 17 and 21, 2013, after the union had presented its petition to Valdivia on October 14, 2013, and while a petition for a Board election—filed October 17, 2013—was pending.
"An employer can also violate Section 8(a)(1) by improperly interrogating employees about their union activities." Garcia, 2014 WL 5343814 at *13 (Southwire Co., 282 NLRB 916, 917 (1987)). The test for evaluating if an interrogation violates § 7 is "whether under all the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act." Id. (citations omitted).
Petitioner has adduced evidence that on October 18, 2013, Valdivia asked Genaro Meza if he knew what he had signed when he signed the petition, if he knew what he was doing, and what the union had promised him in return.
There is additional evidence that interrogations occurred as well. Rosa Lopez testified that on October 21, Valdivia asked whether she had been forced to sign the union petition, and promised her that she could keep her job as long as she wanted if she signed a document stating that she had signed the petition involuntarily.
In sum, the court finds that petitioner has adduced credible evidence that Vista violated § 8(a)(1) by polling and interrogating its employees about their union involvement and support, and by otherwise attempting to solicit revocations of union support in a coercive atmosphere.
"The Board has also found that an employer violates the NLRB by maintaining `surveillance of the meetings and meeting places of [the union] and of the activities of . . . employees in connection with [the union].'" Garcia, 2014 WL 5343814 at *12 (quoting Pennsylvania Greyhound Lines, Inc., 1 NLRB 1, 48 (1935)). "In determining whether an employer's statement has created an unlawful impression of surveillance, the test is `whether the employees would reasonably assume from the statement that their union activities had been placed under surveillance.'" Id. (citing Bridgestone Firestone, 350 NLRB 526, 529 (2007)).
Petitioner argues that Valdivia created an impression of surveillance when she
The court agrees that Ramirez's comments constitute "some evidence" that Vista created an impression of surveillance. The standard used to determine whether conduct constitutes surveillance is an objective one, based on the rationale that "employees should be free to participate in union organizing campaigns without the fear that members of management are peering over their shoulders, taking note of who is involved in union activities, and in what particular ways." Flexsteel Industries, 311 NLRB 257, 257 (1993). Here, Valdivia communicated to Ramirez on October 14, 2013, that she knew union organizing taking place and that authorization cards were being circulated; this was before the petition was presented. Valdivia did not reveal the source of this information. "When an employer tells employees that it is aware of their union activities, but fails to tell them the source of that information, the employer violates Section 8(a)(1). This is because employees are left to speculate as to how the employer obtained its information, causing them reasonably to conclude that the information was obtained through employer monitoring." In re Stevens Creek Chrysler Jeep Dodge, Inc., 353 NLRB 1294, 1296 (2009) (citing North Hills Office Services, 346 NLRB 1099, 1103 (2006); Conley Trucking, 349 NLRB 308, 315 (2007); Dallas & Mavis Specialized Carrier Co., 346 NLRB 253, 254 (2006)).
Vista disputes this, arguing that employees presented the petition to Valdivia a mere half hour after this conversation took place, and that Valdivia had received calls from employees before the conversation regarding the union. This argument is unpersuasive. An employer violates the § 8(a)(1) by creating the impression of surveillance. How Valdivia in fact learned of employees' efforts to unionize is not relevant. What matters is the impression her statements to Ramirez objectively conveyed. During the conversation with Ramirez, Valdivia did not say that she learned of the union activity from other employees,
The court therefore finds that petitioner has adduced some evidence that Vista engaged in conduct that created an impression of surveillance in violation of § 8(a)(1).
"An employer's promise of benefits during a preelection campaign violates Section 8(a)(1)." Dyncorp & Grant Turner, 343 NLRB 1197, 1198 (2004) (citing Bakersfield Memorial Hospital, 315 NLRB 596, 600 (1994)). This is because "[s]uch promises made in the course of urging employees to reject unionization are unlawful because they link improved conditions to defeat of the union." Id. (citing Reliance Electric Co., 191 NLRB 44, 46 (1971), enfd. 457 F.2d 503 (6th Cir. 1972)). The use of "cautious language or even a refusal to commit . . . to specific corrective action, does not cancel the employees' anticipation of improved conditions if the employees oppose or vote against the unions." Id. See also Superior Emerald Park Landfill, LLC, 340 NLRB 449, 460 (2003) ("[T]he fact that an employer couches the promises of benefits in language that does not guarantee anything specific does not remove the taint of illegality").
Petitioner has adduced evidence that Valdivia told Rosa Lopez that if she signed a document stating that she was forced to sign the union petition she "would have [her] job as long as [she] wanted it."
In Tri-County Medical Center, the Board found that "except where justified by business reasons, a rule which denies off-duty employees entry to parking lots, gates, and other outside nonworking areas will be found invalid." 222 NLRB 1089, 1090 (1976); see also Meijer, Inc. v. N.L.R.B., 463 F.3d 534, 544 (6th Cir.2006) (holding that an employer could not prohibit union solicitation and distribution in a driver check-in area because the area was a mixed-use area as employees were "free to talk, read newspapers and magazines, or stand around until their assigned driving
Petitioner cites evidence that after the petition was presented to her, Valdivia—who appeared "very upset and angry"—told all off-duty employees to "leave the premises."
Although Valdivia states in her declaration that some aggressive comments were made, she indicates—both in the declaration and in an earlier November 13, 2013 response—that she "told [them] to leave the building," and that "[a]s they were leaving the building, the guy who was with them was yelling `we're in, we're in!'"
More fundamentally, "because the [c]ourt need not decide whether [Vista], in fact, [ordered the employees to leave] in response to a[u]nion campaign, but [rather] whether [p]etitioner has provided some evidence that it did, the [c]ourt finds that [p]etitioner has met [his] burden." Garcia, 2014 WL 5343814, at *16.
Petitioner next argues that Vista violated § 8(a)(1) by more strictly enforcing its dress code after union activity began. It is well established that an employee's right to wear union insignia while at work is protected by the NLRA. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 795-804, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). "The Board has held that, in the absence of `special circumstances,' an employer's
Sometime during the week of October 14, 2013, following presentation of the union petition, Valdivia held a meeting with housekeeping department employees. At the meeting, she said that Vista intended to enforce its dress code more strictly, prohibiting "uniforms with any type of logos on them."
Employer statements that "reasonably convey[] to [an employee] that he would be jeopardizing his job security and current wage rate by supporting [a] [u]nion" violate § 8(a)(1). See Metro One Loss Prevention Servs. Grp. (Guard Div. NY), Inc. & Allied Int'l Union, 356 NLRB No. 20, 2010 WL 4762307, *1 (Nov. 8, 2010) (citing Liberty House Nursing Homes, 245 NLRB 1194, 1198-1199 (1979) (employer unlawfully threatened employees with more onerous working conditions by, among other things, stating that "if the Union came in, times would be even worse")).
Petitioner cites evidence that assistant director Ester Cuellar told Meza that Valdivia was "well prepared" for a union campaign and that the employees "should all be careful."
Vista reiterates its contention that Valdivia never spoke to Meza. As noted, however, the court does not find Valdivia's blanket denial that she had a conversation with Meza credible. As a result, it finds that petitioner has adduced some evidence that Cuellar made threats of unspecified reprisals in violation of § 8(a)(1).
Section 8(a)(1) is violated when an employer "threaten[s] a plant closure in response to its employees' union activity." Garcia, 2014 WL 5343814, at *8 (citing Hertzka and Knowles v. N.L.R.B., 503 F.2d 625, 627 (9th Cir.1974)). Thus, "[i]f there is `any implication that an employer may or may not take action solely on its own initiative for reasons unrelated to economic necessities and known only' to the company, the statement is considered a threat and is a violation of Section 8(a)(1)." Id. at *8 (quoting Hertzka and Knowles, 503 F.2d at 627).
Petitioner asserts that Vista threatened a plant closure when, in an October 9, 2014 letter to the NLRB, Vista's lawyer stated that the entire facility might be forced to close if the employees were unwilling to accept the company's settlement offers.
The October 2014 letter is an offer of compromise, which states:
The court agrees that Vista's October 2014 letter explicitly threatens closure of the facility. The court also agrees that the threat must be understood as being made in response to union activity. The letter was sent to the NLRB after the union had presented a petition for appointment as the employees' representative, and after it had charged violations of § 8(a). It concerned settlement of claims alleging unfair business practices in violation of the NLRA. The Board was prompted to file the claims that led to the settlement proposal due to union activity and complaints. Thus, Vista's threat must be understood in context as threatening facility closure in response to union activity. Consequently, the court finds that petitioner has adduced some evidence that Vista violated § 8(a)(1) by threatening facility closure in response to union activity.
Petitioner has adduced far more than the low threshold of "some evidence" supporting its charge that Vista violated § 8(a)(1). Accordingly, the court finds that it has satisfied the Ninth Circuit's likelihood of success test for a § 10(j) injunction.
Section 8(a)(3) prohibits employers from changing an employee's terms and conditions of employment to encourage or discourage union activity. 29 U.S.C. § 158(a)(3). Under Wright Line, 251 NLRB 1083 (1980), to prove a violation of § 8(a)(3), petitioner must establish by a preponderance of the evidence that anti-union
Petitioner adduces evidence that all of the employees Vista laid off, with the exception of Carmerlina Perdomo, signed the union petition. Martha Aparicio and Delfina Sanchez were terminated on October 18 and October 15, 2013, respectively.
Petitioner correctly argues that the fact Perdomo did not sign the petition does not undermine a finding that Vista knew the terminated employees had engaged in union activities because her lay-off was part of a "mass discharge." Where employees are terminated in a mass discharge, the NLRB does not require a showing of "correlation between each employee's union activity and his or her discharge. . . . Instead, the [ ] burden [i]s to establish that the mass discharge was ordered to discourage union activity or in retaliation for the protected activity of some." Davis Supermarkets, Inc. v. N.L.R.B., 2 F.3d 1162, 1169 (D.C.Cir.1993) (citing ACTIV Industries, 277 NLRB 356, 356 n. 3 (1985)). Indeed, "[l]ayoffs intended to `discourage membership in any labor organization' violate the NLRA, even if the employer wields an undiscerning axe, and anti-union employees suffer along with their pro-union counterparts." N.L.R.B. v. Frigid Storage, Inc., 934 F.2d 506, 510 (4th Cir.1991) (citing Birch Run Welding & Fabricating v. NLRB, 761 F.2d 1175, 1180 (6th Cir.1985); Merchants Truck Line v. NLRB, 577 F.2d 1011, 1016 (5th Cir.1978); Majestic Molded Products, Inc. v. NLRB, 330 F.2d 603, 606 (2d Cir.1964)). This is because "[t]he issue is the employer's motivation, and he cannot cleanse an impure heart with ignorance of individual employee
Vista contends it did not know of the discharged employees' involvement in union organizing at the times it made the decision to terminate them. It proffers its contract with Pro-Clean, executed on October 3, 2013, as evidence of its motivation for terminating employees in the housekeeping department.
Consequently, the court finds that petitioner has adduced some evidence supporting its claim that Vista was aware of the union activity, and specifically aware that Aparicio and Sanchez had been involved in it before they were terminated. The court thus proceeds to analyze the remaining factor.
Petitioner advances a number of different bases on which the court can infer animus. The court addresses each in turn, except to the extent the argument concerns the mass layoff of the housing department. The court need not address that issue further given petitioner's failure to adduce evidence that Vista knew of union activity at the time it decided to terminate the housekeeping staff and replace them with purportedly less expensive subcontracted employees. Petitioner contends first that Vista's "expressed hostility" toward the union supports an inference of unlawful motive. "Inference of an employer's unlawful motive [toward an employee-activist] may be drawn from the employer's hostility toward the union." Hall v. NLRB, 941 F.2d 684, 688 (8th Cir.1991). Indeed, "evidence of hostility shows even more than animus." In re Orland Park Motor Cars, Inc., 333 NLRB 1017, 1068 (2001). Petitioner cites evidence that, on October 22, 2013, after Aparicio and Sanchez were discharged, Ester Ceullar said that Vista had hired new CNAs for the night shift because Valdivia "want[ed] to get rid of all the people who signed the union thing."
It is also inadmissible hearsay. Petitioner argues that the letter is a "business record" admissible under Rule 803(6). This is incorrect. "[B]ecause Rule 803(6) requires business records to be kept in the regular course of a business activity, records created in anticipation of litigation do not fall within its definition." United States v. Feliz, 467 F.3d 227, 234 (2d Cir. 2006); see Sana v. Hawaiian Cruises, Ltd., 181 F.3d 1041, 1046 (9th Cir.1999) ("Courts are rightfully wary when parties create self-serving documents and seek to offer them as business records"); Timberlake Constr. Co., v. U.S. Fidelity and Guar. Co., 71 F.3d 335, 341-342 (10th Cir.1995) (holding that letters addressing a dispute that was the subject of litigation were written in anticipation of litigation and, therefore did not fall within the business record exception because "[i]t is well-established that one who prepares a document in anticipation of litigation is not acting in the regular course of business"). The court is mindful that it can consider otherwise inadmissible evidence in ruling on a preliminary injunction. Here, however, the evidence is not only unauthenticated, but it does not appear it could be introduced at trial because it is inadmissible hearsay. Additionally, the court's decision to disregard the evidence is strengthened by the fact that Castillo does not include statements corroborating those in the writing in her sworn declaration; the writing, moreover, even if it is Castillo's, is not sworn.
Petitioner next asserts that it is clear from Warner's text messages that Vista had an anti-union animus. He cites the text messages from Warner to Remedios Lopez, which stated that Valdivia was "retaliating against the CNA. [sic] Formation of the union," and that she was "so mad about this union business" that she did not want to name anyone employee of the month.
Vista also contends that the messages are hearsay because they are out-of-court statements offered for their truth. They are correct that the text messages are out-of-court statements that convey Warner's observations and that are offered for their truth. There is no reason, however, to believe that Warner would not be willing to directly testify to the observations she communicated in the text messages. Indeed, she specifically states that she would be willing to speak with the union in one of the texts.
To the extent Vista contends the text messages contain two levels of inadmissible hearsay because Warner relates out-of-court statements by Valdivia, it is mistaken. Rule 801(d)(2) provides that a statement is not hearsay if it is offered against an opposing party and "was made by the party's agent or employee on a matter within the scope of that relationship." See FED.R.EVID. 801(d)(2)(D). To fall within the scope of Rule 801(d)(2)(D), petitioner must show that the challenged statement was made by an "agent or servant" of the Vista. Here, it is undisputed that Valdivia, as Vista's administrator, was charged with authority to manage personnel and otherwise conduct day-to-day business at Vista. Her statements concerning the termination of employees and unwillingness to designate an employee of the month plainly fall within the scope of her employment duties. For that reason, they are not hearsay and there is not a second level hearsay problem. Notably, Vista does not contend otherwise. It mistakenly argues that the statements are inadmissible because Warner was not employed by Vista when she sent the text messages. Initially, there is no evidence in the record that Warner was not employed when she sent the texts. In any event, the court has elected to consider Warner's statements and observations because it presumes petitioner could present this evidence in admissible form at a trial. Accordingly, the court finds that petitioner has adduced some evidence of anti-union animus.
Petitioner also argues that Vista's disparate treatment of employees supports a finding of animus. The Board has repeatedly held that an employer that treats active union supporters differently than other employees violates § 8(a)(3). See, e.g., Allied Med. Transp., Inc., 360 NLRB No. 142, 2014 WL 2987961, *6 (July 2, 2014) ("In October, when Rowe confronted both Desir and Etienne about alleged fare delinquencies, he permitted both to continue working while he conducted an investigation. Shortly after the election, however, Rowe provided no similar opportunity to active union supporters Fertil and Nicolas, both of whom he suspended pending an investigation. Based on this disparate treatment and the Respondent's failure to investigate, we find that the Respondent failed to show that it would have suspended
Petitioner proffers evidence that Aparicio and Sanchez were discharged for sleeping, but that Maria Lopez—whom Aparicio and Sanchez contend was also sleeping, but who did not sign the union petition—was not discharged. Both Aparicio and Sanchez testified that Maria Lopez was sleeping, and Adelman, who reported the nurses for sleeping, stated that there were five employees sleeping.
Vista argues that Maria Lopez was working in another building, Vista Del Mar, and hence could not have been one of the sleeping CNAs. It proffers its October work schedule, which does not have an "x" indicating that Maria Lopez worked on October 6, 2013.
Petitioner contends that the timing of all the layoffs and the lack of investigation preceding Aparicio's and Sanchez's discharge is also indicative of animus. The timing of a discharge can serve as evidence of animus. See Garcia, 2014 WL 5343814 at *22 ("Certainly the timing of these alleged acts by Respondent is suspicious, coming about after Castillo openly supported the Union"); In re Lucky Cab Co., 360 NLRB No. 43, 2014 WL 670231, *37 n. 38 (Feb. 20, 2014) ("Discharges on the heels of union activity and evidence of disparate treatment support a finding of pretextual termination," citing La Gloria Oil & Gas Co., 337 NLRB 1120, 1124 (2002)).
Sanchez and Aparicio were terminated on October 15 and 18, 2013 respectively—one and four days after the union petition was presented to Valdivia. The mass layoff of the housekeeping department occurred from October 25 to 28, 2013—within two weeks of the petition being presented. This timing is "suspicious." See Garcia, 2014 WL 5343814 at *22 ("Petitioner has provided sufficient evidence that Respondent worsened his work conditions as a result of his Union support because of the timing of these alleged acts"); see also Golden Day Sch., Inc. v. N.L.R.B., 644 F.2d 834, 838 (9th Cir.1981) ("The record amply supports the Board's finding that the discharges were motivated by antiunion bias. The discharges followed immediately upon union organizing activity in which the discharged employees participated. Golden Day evidenced strong antiunion bias by announcing to its assembled workers that there would be no union, and by the timing, nature, and extent of interrogation of individual employees").
"The failure to conduct a meaningful investigation and to give the employee who is the subject of the investigation an opportunity to explain are [likewise] clear indicia of discriminatory intent." See New Orleans Cold Storage & Warehouse Co., Ltd., 326 NLRB 1471, 1477 (1998), enfd. 201 F.3d 592 (5th Cir.2000); K & M Electronics, 283 NLRB 279, 291 (1987) (same); see also PCC Structurals, Inc., 330 NLRB 868, 896 (2000) ("Finally, it is very significant that Schwanz, asserting that this chalkboard message was the `final straw,' never even provided Maloney with an opportunity to demonstrate that the message was not negatively directed at Green but rather was designed to encourage continued support for the Union").
Vista proffers no evidence and makes no argument that Sanchez and Aparicio were given a meaningful opportunity to explain their side of the story; both asserted that they had previously been permitted to sleep during the night shift.
Petitioner asserts that Vista's departure from past practices further supports a finding of animus and discriminatory motive with respect to the discharge of Sanchez and Aparicio. See Bryant & Stratton Business Institute, 321 NLRB 1007, 1026-1028 (1996), enfd. 140 F.3d 169 (2d Cir. 1998) (holding that an employer unlawfully disciplined faculty members for ending class periods early where discipline had not previously been imposed for that reason); Thill, Inc., 298 NLRB 669, 670 (1990) (the "singling out of . . . two [employees] for warnings on the basis of conduct for which no other employee had ever been warned" was evidence of animus); see also In re Lucky Cab Co., 2014 WL 670231 at *31 ("departure from past practices" constitutes circumstantial evidence of animus).
As noted, petitioner has adduced testimony that nurses routinely slept on the job, and that charge nurses knew this (and even slept themselves).
Finally, petitioner correctly argues that the existence of other unfair labor practices (i.e., violations of § 8(a)(1)) reinforces a finding of animus. The court need not shut its eyes to the totality of the circumstances, or unnecessarily focus on isolated events. See Elec. Data Sys. Corp., 305 NLRB 219, 219 (1991) ("Even without direct evidence, the Board may infer animus from all the circumstances," citing Mistletoe Express Service, 295 NLRB 273, 275 (1989); Birch Run Welding, 269 NLRB 756, 764-767 (1984), enfd. 761 F.2d 1175 (6th Cir.1987)). Considering the circumstantial evidence of animus discussed in this section, in combination with Vista's numerous § 8(a)(1) violations, the court is satisfied that petitioner has adduced adequate evidence to support a reasonable inference of anti-union animus.
"A finding of pretext defeats any attempt by the [employer] to show that it would have discharged the [employees] absent their union activities. This is because where `the evidence establishes that the reasons given for the [employer]'s action are pretextual—that is, either false or not in fact relied upon—the [employer] fails by definition to show that it would have taken the same action for those reasons, absent the protected conduct. . . ." Rood Trucking Co., Inc., 342 NLRB 895, 898 (2004) (quoting Golden State Foods Corp., 340 NLRB 382, 385 (2003) (in turn citing Limestone Apparel Corp., 255 NLRB 722 (1981))). See also Sanderson Farms, Inc., 340 NLRB 402, 402-03 (2003) ("The Respondent's reason for discharging Noland was, therefore, pretextual and defeats its attempt to show that it would have discharged Noland absent his union activities").
Petitioner has adduced some evidence that Vista's discharge of Aparicio, Sanchez, and the housekeeping department was pretextual. Because he has also adduced evidence that Vista knew Aparicio, Sanchez, and members of the housekeeping department were involved with the union, as well
Section 8(a)(5) prohibits an employer from refusing "to bargain collectively with the representatives of its employees, subject to the provision of section 159(a) of this title." 29 U.S.C. § 158. Petitioner argues that, under NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), Vista is obligated to recognize and bargain with the union because signed employee authorization cards reflect majority support for the union. In Gissel Packing, the Supreme Court held that the NLRB can order an employer to recognize and bargain with a union even when employees have not chosen union representation through the normal election procedure. Such an order is appropriate in two circumstances. When an employer has engaged in such "outrageous" and "pervasive" unfair labor practices "that a fair and reliable election [cannot] be held," the NLRB can order bargaining even absent a showing of majority support for the union. See id. at 613-14, 89 S.Ct. 1918. The NLRB can also order bargaining when the union shows that it once had a majority and that its support was "undermined" by unfair practices that "impede[d] the election process." Id. at 614, 89 S.Ct. 1918. The Ninth Circuit has upheld "interim bargaining orders" on the grounds that the purpose of a § 10(j) injunction is to protect the integrity of the collective bargaining process. See Scott ex rel. N.L.R.B. v. Stephen Dunn & Associates, 241 F.3d 652, 661 (9th Cir.2001) ("To permit illegal employer conduct to go unaddressed while the Board's corrective machinery grinds toward resolution would subvert the underlying purposes of § 10(j) and allow those who commit unfair labor practices to reap the benefits of that conduct. Interim bargaining orders are therefore sometimes necessary to preserve the status quo pending litigation before the Board").
Petitioner argues that the union once had majority support among Vista employees, and this its support was "undermined" by unfair practices that "impede[d] the election process." This requires a two-pronged showing: (1) that a majority of Vista's employees supported the union; and (2) that Vista engaged in unfair labor practices that undermined the majority and impeded the holding of an election. Scott, 241 F.3d at 662.
Petitioner argues that as of October 13, 2013, the union had collected authorization cards from a majority of the bargaining unit of 46 individuals. The evidence supports this argument. Petitioner proffers 32 union authorization cards, each of which was purportedly signed by a Vista employee.
In deciding whether Vista engaged in unfair labor practices that undermined the majority and impeded the holding of an election, the court is mindful that the Ninth Circuit has cautioned courts not to impose an "inappropriately high [standard] of proof." Id. at 664. The Regional Director can satisfy the Ninth Circuit's likelihood of success standard "by demonstrating a `fair chance' that the Board is likely to issue a bargaining order subsequent to full adjudication of the merits." Id. Because a bargaining order is both "an extreme and unusual exercise of the Board's authority," id., however, it must support its imposition of this remedy with "`specific findings as to the immediate and residual impact of the unfair labor practices on the election process.'" National Labor Relations Board v. Pacific Southwest Airlines, 550 F.2d 1148, 1152 (9th Cir.1977) (quoting Peerless of America, Inc. v. National Labor Relations Board, 484 F.2d 1108, 1118 (7th Cir.1973)). "Thus, whether the Board will issue a bargaining order in the underlying administrative proceeding turns on the effect of the alleged unfair labor practices on a subsequent representation election. This inquiry is not mechanistic, but rather requires consideration of the specific facts of each case." Scott, 241 F.3d at 664.
Certain violations have regularly been regarded by the Board and the courts as highly coercive. "These are the so-called `hallmark' violations and their presence will support the issuance of a bargaining order unless some significant mitigating circumstance exists. They include . . . the reassignment, demotion or discharge of union adherents in violation of § 8(a)(3) of the [NLRA]." N.L.R.B. v. Jamaica Towing, Inc., 632 F.2d 208, 212-13 (2d Cir. 1980); see Scott, 241 F.3d at 666 ("The existence of at least one `hallmark' violation of the NLRA . . . is sufficient to satisfy this minimal test and allow a consideration of the balance of hardships resulting from an interim bargaining order").
Petitioner asserts the facts of this case support entry of a Gissel order. The court agrees. Here, as outlined, immediately after the union obtained a majority of signatures and presented the petition to Valdivia on October 14, 2013, Vista fired Sanchez and Aparicio on October 15 and 18, 2013;
In addition, the court has concluded that Vista also threatened closure of the facility in response to unionization efforts.
Irreparable harm is "that for which compensatory damages are unsuitable." MGM Studios, Inc. v. Grokster, Ltd., 518 F.Supp.2d 1197, 1210 (C.D.Cal. 2007) (quoting Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 24 (5th Cir. 1992)). If the harm to the plaintiff is merely monetary, it "will not usually support injunctive relief." American Trucking Associations, 559 F.3d at 1057. See also California Pharmacists Association v. Maxwell-Jolly, 563 F.3d 847, 851-52 (9th Cir.2009) ("Typically, monetary harm does not constitute irreparable harm. . . . Economic damages are not traditionally considered irreparable because the injury can later be remedied by a damage award" (emphasis original)).
To warrant injunctive relief, it is not enough that the claimed harm be irreparable; it must be imminent as well. Caribbean Marine Servs. Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir.1988); Los Angeles Mem'l Coliseum v. Nat'l Football League, 634 F.2d 1197, 1201 (9th Cir.1980); see also Amylin Pharmaceuticals, Inc. v. Eli Lilly and Co., 456 Fed.Appx. 676, 679 (9th Cir.2011) (Unpub.Disp.) ("[E]stablishing a threat of irreparable harm in the indefinite future is not enough"); California Dump Truck Owners Ass'n v. Nichols, No. 11-cv-00384-MCE-GGH, 2012 WL 273162, *3 (E.D.Cal. Jan. 30, 2012) (quoting Amylin). Nor does speculative injury constitute irreparable harm sufficient to warrant granting a preliminary injunction. Carribean Marine Servs., 844 F.2d at 674 (citing Goldie's Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir.1984)).
Applying these standards, "[a] plaintiff must do more than merely allege imminent harm . . .; a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief." Caribbean Marine Servs., 844 F.2d at 674 (emphasis original). To do so, he must proffer probative evidence that the threatened injury is imminent and irreparable. Am. Passage Media Corp. v. Cass Communications, Inc., 750 F.2d 1470, 1473 (9th Cir.1985) (reversing the entry of a preliminary injunction because the movant failed to adduce evidence of irreparable harm); Bell Atlantic Business Systems, Inc. v. Storage Tech. Corp., No. C-94-0235, 1994 WL 125173, *3 (N.D.Cal. Mar. 31, 1994) (denying a motion for preliminary injunction because the movant failed to adduce sufficient evidence of a threat of irreparable harm). Conclusory affidavits
In Winter, the Supreme Court held that the irreparable injury standard previously employed in the Ninth Circuit—that a "possibility" of irreparable injury sufficed to support entry of a preliminary injunction if plaintiff made a strong showing of likely success on the merits—was too lenient. Rather, it concluded the plaintiff must demonstrate that irreparable injury is "likely in the absence of an injunction." Winter, 555 U.S. at 22, 129 S.Ct. 365 (emphasis original); American Trucking Associations, 559 F.3d at 1052; see also 11A C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE § 2948.1, p. 139 (2d ed.1995) (an applicant must demonstrate that in the absence of preliminary relief, she "is likely to suffer irreparable harm before a decision on the merits can be rendered"). Thus, following Winter, a plaintiff seeking a preliminary injunction must show that he will likely suffer irreparable harm if an injunction does not issue. Winter, 555 U.S. at 20, 129 S.Ct. 365; see Johnson, 572 F.3d at 1081 ("[P]reliminary injunctive relief is available only if plaintiffs [also] `demonstrate that irreparable injury is likely in the absence of an injunction,'" quoting Winter, 555 U.S. at 22, 129 S.Ct. 365).
In the Ninth Circuit, a Regional Director seeking an injunction under § 10(j) must show that irreparable harm is likely under Winter. Small v. Avanti Health Systems, LLC, 661 F.3d 1180, 1191 (9th Cir.2011). The Ninth Circuit has emphasized, however, that "the Director need not prove that irreparable harm is certain or even nearly certain." Id. It has also commented that "[an] alleged unfair labor practice to reach fruition and thereby render meaningless the Board's remedial authority is irreparable harm." Id. (citing Frankl, 650 F.3d at 1362 (holding that the district court did not abuse its direction in determining that the Director showed a likelihood of irreparable harm where he established a likelihood of success on the merits)).
Petitioner argues that the irreparable effects of Vista's unlawful termination of employees are obvious, given that they have had a significant chilling effect on the remaining employees. Numerous Vista employees have indicated that, as a result of the terminations and anti-union sentiment expressed by Vista, they feared losing their jobs because they supported the union. For example, Maria Ramirez stated on October 29, 2013, that "[a]s a result[ ] of [her] coworkers' termination, [she] ha[d] fear of losing [her] job because [she] supported the [u]nion."
The court is mindful of the fact that this testimony is hearsay; because the testimony is supported by numerous accounts of similar fears, however, the court finds the evidence sufficiently trustworthy to give it some weight. See Flynt, 734 F.2d at 1394 ("The Harveys argue that Flynt's evidence is hearsay. . . . The trial court may give even inadmissible evidence some weight, when to do so serves the purpose of preventing irreparable harm before trial"); Souza v. California Dep't of Transp., No. CV 1304407 JD, 2014 WL 1760346, *7 (N.D.Cal. May 2, 2014) ("While Caltrans also makes additional objections such as hearsay, in deciding a preliminary injunction, the district court `may give even inadmissible evidence [including hearsay] some weight, when to do so serves the purpose of preventing irreparable harm before trial'" (citation omitted)).
On October 30, 2013, Maria Rodriguez indicated that she had the same fears as these employees; she stated that she was "aware that employees ha[d] been fired," and that she thought they had been fired "because they supported the [u]nion."
Marcos Salvador and Reyna Artola testified they felt they could be fired for supporting the union.
It is well settled that "the fear of employer retaliation after the firing of union supporters is exactly the `irreparable harm' contemplated by § 10(j)." Pye v. Excel Case Ready, 238 F.3d 69, 75 (1st Cir.2001); Asseo v. Centro Medico Del Turabo, 900 F.2d 445, 454 (1st Cir.1990) ("As the district court concluded, there was a very real danger that if Turabo continued to withhold recognition from the Union, employee support would erode to such an extent that the Union could no longer represent those employees. At that point, any final remedy which the Board could impose would be ineffective"); see also NLRB v. Electro-Voice, Inc., 83 F.3d 1559, 1572 (7th Cir.1996) (noting the "chilling effect" on union organizing that often follows the illegal discharge of key union members). The fears expressed by numerous Vista employees that they will be discharged or mistreated if they continue to support the union is sufficient to justify a finding of irreparable harm.
"In a similar vein, `the 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, 650 F.3d at 1363 (quoting Pye, 238 F.3d at 74). Thus, there is support for a finding of irreparable harm with respect to petitioner's § 8(a)(3) claim as well. See id. ("a likelihood of success as to a § 8(a)(3) violation with regard to union activists that occurred during contract negotiations or an organizing drive largely establishes likely irreparable harm, absent unusual circumstances")
Vista does not dispute that the cases the court has cited are on point. Instead, it contends that petitioner's delay in filing a petition warrants a finding that Vista employees are not likely to suffer irreparable harm.
In Frankl, 650 F.3d at 1363-64, by contrast, the Ninth Circuit came to a different conclusion. The court discussed McDermott, 593 F.3d at 963—the same case on which the Veritas Health court relied—and determined that it did not preclude a finding of irreparable harm in a case in which the Regional Director waited thirteen to seventeen months to file a § 10(j) petition. Frankl, 650 F.3d at 1363-64. The Frankl court distinguished McDermott because the case involved First Amendment issues and the court thus applied a "special, heightened standard." Id. at 1364. See also McDermott, 593 F.3d at 964 ("In light of the First Amendment issues in this case, we conclude that the district court did not abuse its discretion by declining to grant preliminary relief. The standard for such relief is a tough one" (emphasis added)).
Second, the Frankl court explained that, unlike in McDermott, "the record provided specific support for the conclusions that there would likely be irreparable harm beyond that which could be remedied once the Board had ruled, and that interim relief was more likely to curb the ongoing unfair labor practices than subsequent relief." Frankl, 650 F.3d at 1364. Finally, the court observed that the "passage of time did not entirely preclude the District Court's ability to restore the status quo," in part because the union remained "willing to represent the employees and to bargain on their behalf under an interim bargaining order." Id.
In this case, the court concludes that the NLRB's delay does not undermine a finding of irreparable harm. See Sharp ex rel. N.L.R.B. v. Webco Indus., Inc., 225 F.3d 1130, 1136 (10th Cir.2000) ("Although the amount of time that may elapse before the Board's action can be considered unreasonable is, to a large extent, case-specific, there is a certain leniency that the Board must be afforded, stemming from the deference to the Board that is built into the statutory scheme," citing Pascarell v. Vibra Screw Inc., 904 F.2d 874, 881 (3d Cir.1990)). Initially, the court finds petitioner's argument that Vista's conduct throughout the pendency of this action has made it difficult for them to file this motion in a more timely manner credible and persuasive. As noted, Vista filed a motion seeking to enjoin the NLRB from enforcing administrative subpoenas,
The court, moreover, agrees with petitioner that this case is analogous to Frankl. First, like Frankl, and unlike McDermott, the action not involve First Amendment concerns. Further, as petitioner contends, there is abundant evidence that Vista's unfair business practices have caused employees to fear supporting the union throughout the pendency of the NLRB action. Given that the court has found it appropriate to enter a Gissel order, there is no question that Vista employees who are part of the collective bargaining unit continue to face a significant risk of irreparable harm if Vista is not enjoined from further unfair business practices. Further unfair business practices would severely undermine the vitality of the court's Gissel order and order reinstating the wrongfully terminated employees. If Vista employees do not feel comfortable expressing support for the union, and if they are unable to bargain in an environment free of unfair business practices, this will seriously undercut the Gissel order the court intends to issue. As a result, § 8(a)(1) "relief in this case is intimately tied up with the interim bargaining order." See Frankl, 650 F.3d at 1364. For this reason, Vista cannot reasonably contend that an order enjoining further violations of § 8(a)(1) will not aid in restoring the status quo, nor can it assert that interim relief would be no more effective than an order from the Board. See McDermott, 593 F.3d at 965 ("The factor of delay `is only significant if the harm has occurred and the parties cannot be returned to the status quo or if the Board's final order is likely to be as effective as an order for interim relief'"). This is especially true in light of the fact that the NLRB's backlog of cases causes matters before it to move at a "notoriously glacial" pace. See Lineback v. Irving Ready-Mix, Inc., 653 F.3d 566, 570 (7th Cir.2011) ("The goal [of a § 10(j) injunction] 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," quoting Kinney v. Pioneer Press, 881 F.2d 485, 491 (7th Cir. 1989) (stating that "[t]he district judge must assess . . . the harm that may go unchecked during the `notoriously glacial' course of NLRB proceedings" and vacating the denial of § 10(j) injunction)); Boire v. Int'l Bhd. of Teamsters, 479 F.2d 778, 788 (5th Cir.1973) ("The notoriously glacial immobility of the Board could easily drag the unit clarification out for a year or more, and by that time, the Teamsters would invariably be able to get a toe-hold on the Florida operation that would prove most difficult to overcome. . . . It is precisely such an occurrence that § 10(j) was designed to prevent").
Reinstatement of the wrongfully terminated employees, moreover, will undoubtedly serve to revive the union's organizational campaign at Vista. See Frankl, 650 F.3d at 1364 ("Having current employees on the bargaining committee in daily contact with the other employees and therefore able to judge the impact of various bargaining proposals on their constituencies is likely to affect not only the other employees' willingness to adhere to union support, but also the interim bargaining process itself. For that reason, the § 8(a)(3) relief in this case is intimately tied up with the interim bargaining order."); Aguayo, 853 F.2d at 750 ("Although interim reinstatement [of a terminated employee] may not precisely restore the status quo in the case before us, it would revive the union's organizational campaign at Tomco"); Norelli v. HTH Corp., 699 F.Supp.2d 1176, 1203-04 (D.Haw.2010) ("As more time passes, it becomes less likely that these discharged employees will return to the Hotel, which `may itself cause irreparable injury to the unionization effort.' At least as of today, however, the employees wish to return to the Hotel. Accordingly, the delay in time does not make injunctive relief any less necessary to prevent ongoing harm and ensure the effectiveness of a Board final order."). The union remains eager to represent Vista employees, given the request for a Gissel order, and the employees appear to have an interest in continued employment with Vista, based on the fact that settlement discussions involved the prospect of reinstatement.
"Finally, of course, there is the fact that [the Ninth Circuit panels in] McDermott [and Veritas Health II] [were] reviewing denial of interim relief under an abuse-of-discretion standard," which is highly deferential and does not imply that such relief cannot properly be granted in this case. Frankl, 650 F.3d at 1364-65.
For all of these reasons, the court finds that petitioner has made an adequate showing of irreparable harm.
"In each case, a court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Amoco Production Co. v. Village of Gambell, AK, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). See also International Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 827 (9th Cir.1993) ("In evaluating the balance of hardships a court must consider the impact granting or denying a motion for a preliminary injunction will have on the respective enterprises"). It must also "consider the public interest as a factor in balancing the hardships when the public interest may be affected." Caribbean Marine Servs., 844 F.2d at 674. Specifically, in assessing whether a Regional Director
Petitioner argues that the balance of hardships tips decidedly in favor of issuing a preliminary injunction. He contends that absent reinstatement of the discharged employees, the Board's remedial authority to order reinstatement will likely become meaningless with the passage of time; he notes as well that current Vista employees will continue to live in fear of discharge, and the union will unjustly go unrecognized by Vista. See Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 938 (9th Cir.1987) (concluding that "damages and [subsequent] reinstatement would not remedy the coercive inhibitory effects upon the employees' organizational rights"); Electro-Voice, Inc., 83 F.3d at 1573 (reinstating discharged employees was necessary to remedy the likelihood of diminishing support for the union while awaiting a final Board order). As employees await a decision by the Board, moreover, they may be forced to relocate to different cities or geographical areas to support their families and themselves. See Garcia, 2014 WL 5343814 at *25 (finding similar issues weighed in favor of granting interim relief).
On the other hand, Vista faces little in the way of hardship if interim relief is not granted. An injunction will simply require Vista to cease engaging in unfair labor practices, to reinstate employees it wrongfully terminated, and to recognize the union it should have recognized long ago. Vista contends that the balance of the hardships tips in its favor because being required to reinstate "the sleeping nurses" would allow other employees to infer that such conduct is acceptable, and because it would incur great costs canceling the Pro-Clean.
Accordingly, the court finds that the balance of hardships weighs in favor of entry of an injunction.
"In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Romero-Barcelo, 456 U.S. at 312, 102 S.Ct. 1798. "The public interest analysis for the issuance of a preliminary injunction requires [the court] to consider `whether there exists some critical public interest that would be injured by the grant of preliminary relief.'" Independent Living Center of Southern California, Inc. v. Maxwell-Jolly, 572 F.3d 644, 659 (9th Cir. 2009) (quoting Hybritech Inc. v. Abbott
In "§ 10(j) cases, the public interest is to ensure that an unfair labor practice will not succeed because the Board takes too long to investigate and adjudicate the charge." Small, 661 F.3d at 1197 (citing Frankl, 650 F.3d at 1365). Moreover, the public interest favors ensuring compliance with federal law. See N.D. v. Haw. Dep't of Educ., 600 F.3d 1104, 1113 (9th Cir.2010) ("[I]t is obvious that compliance with the law is in the public interest"). When the Regional Director makes a strong showing of likelihood of success and of irreparable harm, he "will have established that preliminary relief is in the public interest." Small, 661 F.3d at 1197 (citing Frankl, 650 F.3d at 1365).
Petitioner argues that he has made a strong showing of likelihood of success and irreparable harm, and that this warrants a finding that injunctive relief would be in the public interest under Small and Frankl. The court agrees. It therefore finds that the public interest supports granting injunctive relief. See id. ("[O]rdinarily . . . when, as here, the Director makes a strong showing of likelihood of success and of likelihood of irreparable harm, the Director will have established that preliminary relief is in the public interest. The district court did not abuse its discretion in finding that the public interest supports the grant of a preliminary injunction"); Garcia, 2014 WL 5343814 at *25 ("Here, Petitioner has shown that she has a likelihood of success and thus, the Court finds that it is in the public interest to halt Respondent's alleged unlawful acts and to preserve the Board's remedial power").
For the reasons stated, petitioner's motion for a preliminary injunction is granted. The court will enter a preliminary injunction enjoining Vista from engaging in further unfair business practices under § 8(a)(1), and ordering the reinstatement of Sanchez, Aparicio, and all members of the housekeeping department terminated in October 2013. The court will also enter a Gissel order requiring Vista to recognize and bargain with the union and collective bargaining unit during the pendency of the NLRB proceedings.
The Winter Court "definitively refuted" the Ninth Circuit's "possibility of irreparable injury" standard. Id. It held that the "`possibility' standard [was] too lenient," and that "plaintiffs seeking preliminary relief [have] to demonstrate that irreparable injury is likely in the absence of an injunction." Winter, 555 U.S. at 22, 129 S.Ct. 365 (emphasis original). Following Winter, the Ninth Circuit has held that "[t]o the extent that our cases have suggested a lesser standard, they are no longer controlling, or even viable." American Trucking Associations, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009) (footnote omitted). The Ninth Circuit subsequently reaffirmed this in the NLRB context. See Frankl, 650 F.3d at 1355 ("In all cases, however, the Regional Director `must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction'"); Small v. Operative Plasterers' and Cement Masons' Int'l Ass'n, Local 200, 611 F.3d 483, 491 (9th Cir.2010) (observing, in an NLRB case, that Winter overruled prior case law holding that a mere "possibility of irreparable harm" could suffice).
