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holding that credibility issues arising from sharply conflicting affidavits and the timing of the interview at issue severely undermined petitioner's likelihood of success on the merits
Summary of this case from Norelli v. Fremont-Rideout Health GroupOpinion
NO. CV 06-04618 GPS (VBKx).
September 26, 2006
ORDER DENYING PETITIONERS MOTION FOR TEMPORARY INJUNCTION
Petitioner, the National Labor Relation Board's (NLRB's) Motion for Temporary Injunction has been fully considered by the Court and it is DENIED.
In light of the Court's ruling, the remaining pending motions and applications are DENIED as moot. These include Petitioner's Application for Protective Order, Respondent's Application for Order Shortening Time, and Respondent's Motion to Stay Proceedings.
I. BACKGROUND
Petitioner requests a temporary injunction pursuant to section 10(j) of the National Labor Relations Act ("the Act"). Pet'r Mem. Of P. A. in Supp. of Pet. for T.R.O. ("Pet'r Supp. Mem. for T.R.O.") p. 1. The Petitioner's application for a 10(j) injunction alleges that Respondent has and continues to engage in violations of sections 8(a)(1) and 8(a)(5) of the Act. Id. at 2. The two charges specifically relevant to the present injunction are: (1) that Respondent unlawfully withdrew its recognition of a certified union; and (2) that Respondent was unlawfully involved in the circulation of a petition to decertify the union. Id.
Respondent's employees have been represented by a division of the AFL-CIO ("Union") since April 2004 when the Union was certified by the NLRB, Id. at 5. On January 5, 2006, Respondent's employees filed a decertification petition seeking to remove the Union as their representative. Id. at 6. At the request of the NLRB, a second petition was filed by the employees on January 17, 2006. Resp't Mem. P. A. in Supp. of Opp'n to Pet. for T.R.O. ("Resp't Opp'n Mem, to T.R.O.") p. 7. These petitions suggested the Union had lost the support of the majority of the employees. Id. at 6. Pending the resolution of these decertification petitions, Respondent suspended negotiations with the Union regarding the collective bargaining agreement ("CBA"). Id. The Union responded by filing an unfair labor practice charge against Respondent for unlawfully refusing to recognize the Union. Id. at 8. NLRB policies require the unfair labor practice charge to be resolved before the decertification petition may be considered. Pet'r Supp. Mem. for T.R.O. p. 6.
The NLRB investigated the charge that Respondent had unlawfully withdrawn its recognition of the Union. Resp't Opp'n Mem. to T.R.O. p. 8. This investigation involved checking the authenticity of the signatures on the decertification petition. Id. After three months, the NLRB informed Respondent there was evidence that two of the signatures may have been "tainted" by Respondent's supervisory personnel during the circulation of the decertification petition. Id. On April 10, 2006, the Union filed an unlawful labor practice charge consistent with the NLRB's findings and alleging that the decertification petition was tainted by Respondent's involvement. Id. at 9-10.
As a result of these two charges, Petitioner now requests that a temporary injunction be issued pending final disposition of these unfair practice charges by the Administrative Law Judge. Pet'r Supp. Mem. for T.R.O. p. 1. The terms of the requested injunction include the following: (1) that Respondent bargain in good faith with the Union as the exclusive collective-bargaining representative of the employees; (2) that Respondent stop soliciting and encouraging employees to decertify the Union; (3) that Respondent not interfere, restrain or coerce its employees in the exercise of rights guaranteed them in section 7 of the Act; (4) that Respondent, on request of the Union, restart the negotiations and sign any agreement reached; (5) that Respondent post copies of this Court's injunctive order at employee message boards within 14 days of this Court's decision; and (6) that Respondent provide a sworn affidavit detailing how Respondent complied with the Court's order. Pet'r Pet. for T.R.O. p. 7-8.
II. LEGAL STANDARD
Section 10(j) of the Act provides district courts with limited jurisdiction over labor relations matters that are otherwise the province of Administrative Law Judges. Section 10(j) was enacted by Congress to provide interim injunctive relief protecting the integrity of the collective-bargaining process while the NLRB resolves an unfair labor practice charge. Miller v. California Pacific Medical Center, 19 F.3d 449, 459-60 (9th Cir. 1994) (en banc). The issuance of a 10(j) injunction, however, is still an extraordinary remedy, and the district court must determine whether such an injunction is "just and proper." See 29 U.S.C. § 160(j); Miller, 19 F.3d at 455-58.
The Ninth Circuit requires a district court making that determination to consider traditional equitable criteria while paying special attention to the underlying purpose of § 10(j), "to protect the integrity of the collective bargaining process." Miller, 19 F.3d at 459-60. The criteria to be considered include: (1) the likelihood that the moving party will succeed on the merits in the underlying administrative proceeding; (2) the possibility of irreparable injury to the moving party if the relief is not granted; and (3) the extent to which the balance of hardships favors the respective parties. Id. at 456.
The criteria are interrelated. If the moving party can show a strong likelihood it will prevail on the merits, the court presumes there is irreparable harm. Id. at 460. But when the moving party can show only a fair chance of success on the merits, the court must additionally give greater consideration to the possibility of irreparable harm. Id. Finally, where both parties demonstrate hardship, the court must exercise its sound discretion to determine in whose favor the balance of hardships tips. Id. at 460-61.
III. DISCUSSION
A. Likelihood of Success On The Merits
It appears from the facts of the present case that Petitioner has, at best, a fair chance of succeeding on the merits. The Miller court found that a minimal threshold showing of likelihood of success on the merits could be made by showing there is some evidence to support the unfair practice charges together with an arguable legal theory. Miller, 19 F.3d at 460. It is only this minimum that exists here.
Even this conclusion rests solely on the generous rules applied by the Ninth Circuit, which allow a finding of a likelihood of success so long as there is more than a negligible chance of success. Scott v. Stephen Dunn Assoc., 241 F.3d 652, 662 (9th Cir. 2001).
The two issues here are: (1) whether Respondent unlawfully withdrew recognition of the Union and ceased negotiating; and (2) whether Respondent unlawfully solicited or encouraged the decertification petition that ultimately provided its basis for suspending its negotiations with the Union. Pet'r Supp. Mem. for T.R.O. p. 1. The allegations that the decertification petition was "tainted" will be considered first.
1. Decertification Petition
In the parties' papers, the likelihood of success discussion focuses on the evidence regarding the two allegedly "tainted" signatures on the decertification petition: those of Garcia and Velazquez. Petitioner offers evidence in the form of witness affidavits to support the claim that these signatures were invalid, and thus, that the Union continues to enjoy majority support. Pet'r Supp. Mem. for T.R.O. p. 14. The credibility of these affidavits is ultimately an issue for the Administrative Law Judge to determine, but the obvious weakness in Petitioner's evidence, as demonstrated below, leads this Court to find only a minimal chance of success on the merits.
Petitioner argues that both the Garcia and Velazquez signatures are "tainted" because there is some evidence that one of Respondent's former supervisors, Fisher, may have improperly supported the decertification petition. Id. at 9-10.
Garcia swore out two affidavits, one in March and one in May. Pet'r Pet. for T.R.O., Ex. 3, pp. 90, 98. In each affidavit, Garcia discussed how he was pressured to sign the decertification petitions by his "team leader" Ray Diaz. Id. at 86-89, 90-98. Diaz is not a supervisor, but merely another employee who could not terminate Garcia or otherwise affect his job as he allegedly threatened to do if Garcia did not sign the petition. Resp't Opp'n Mem. to T.R.O. p. 16. Nevertheless, Petitioner argues this signature is "tainted" because, according to Garcia's second affidavit, he overheard Fisher adopting Diaz's actions by telling Diaz he could continue to "take care of" Garcia. Pet'r Pet. for T.R.O., Ex. 3, pp. 96-97. A problem with this allegation is that Garcia's first affidavit, authorized two months closer to the incident, said nothing of this overheard conversation and in fact stated that no supervisors said anything to him about the petition or the Union. Id. at 89.
The facts surrounding Velazquez's signature are vigorously disputed and demonstrate more significant credibility problems because they are based on hearsay evidence and demonstrate additional inconsistencies similar to those in the Garcia affidavits. Specifically, the allegations are that Fisher encouraged another employee to collect Velazquez's signature and even used company resources to subsidize this activity.
There are two affidavits from an employee named Millan who collected Velazquez's signature. Id. at 99-104. In the first affidavit, that was signed on April 7, Millan said he brought the original decertification petition to Velazquez at his home after they talked about it on the phone. Id. at 99. After both Millan and Velazquez signed the petition, Millan spoke to Fisher about whether any steps were being taken to get rid of the Union. Id. Fisher allegedly said something like "we're working on it." Id. When a second petition needed to be signed, Millan brought this new petition to Velazquez during Millan's lunch break. Pet'r Pet. for T.R.O., Ex. 3, pp. 99-100. According to Millan's first affidavit, he did not get permission from any supervisors to leave at lunch to take the petition to Velazquez or speak to any supervisors about the petition. Id. In summary, according to his first affidavit, Millan says absolutely nothing to indicate that Velazquez's signature on either petition was "tainted" since the original petition was signed before anyone spoke to Fisher, and the second was signed without Milan having spoken to any supervisors. These facts are sharply contradicted, however, by Millan's second affidavit that he made on the same day as the first after he "remembered" that Fisher talked to him about getting Velazquez's signature on the petition. Id. at 101.
According to Millan's second affidavit, Fisher told him to take the second petition to Velazquez during the work day to get his signature, and reimbursed him for the gas he used on this errand with a company gas ticket. Id. at 102-104. While the second affidavit provides some evidence that Velazquez's signature is "tainted," it is difficult to give this affidavit much weight given its sharp conflict with the first affidavit. Further, even the second affidavit provides no proof that Velazquez would not have signed the petitions even if he was not told Fisher wanted them signed. Given that Millan was interviewed after Velazquez, there is at least a chance that Millan changed his story to match what Velazquez had sworn under oath.
The affidavit that Velazquez provided on March 29 recounted facts similarto Millan's second affidavit, though Velazquez's consists largely of hearsay since Velazquez had no contact with Fisher himself. Id. at 110. Velazquez alleges that Millan claimed Fisher was hounding Millan to get Velazquez's signature on the decertification petitions. Id. at 109. Velazquez also claims that he agreed to sign the petition two weeks after initially saying no, although there is nothing suggesting anyone discussed the issue with him in the interim. Id. Besides being pure hearsay as to everything Fisher said to Millan, the Velazquez affidavit also fails to show that Fisher's alleged statements had anything to do with Velazquez signing the petition.
While the credibility issues are not for this court to decide, the significant problems with Petitioner's evidence severely undermines Petitioner's likelihood to succeed on the merits.
2. Withdrawing Recognition
Petitioner's second charge is that Respondent unlawfully withdrew recognition of the Union in January 2006, when it stopped participating in negotiations for a CBA. Both parties agree the Respondent withdrew from the CBA negotiations after receiving notice of the decertification petition, but they disagree as to whether Respondent withdrew its recognition of the Union and, if so, whether Respondent was privileged to withdraw this recognition. Resp't Opp'n Mem. to T.R.O. p. 18. While the ultimate determination of these issues is for the Administrative Law Judge, this Court must consider whether Petitioner can show a likelihood of success on these claims. This Court finds that Petitioner can make, at best, a minimal showing of likelihood of success because there is only "some evidence" that the Respondent withdrew its recognition of the Union and an arguable legal theory that this withdrawal was unlawful. See Miller, 19 F.3d at 460.
The parties strongly disagree as to whether Respondent has even withdrawn its recognition of the Union. Resp't Opp'n Mem. to T.R.O. p. 18. Respondent insists that it has merely suspended negotiations for a CBA until the Administrative Law Judge resolves whether the Union still has the support of a majority of employees. Id. at 17. Despite suspending negotiations, Respondent has remained in contact with the Union as the exclusive representative of employees regarding policies relating to administration of attendance, payment of bonuses, and discipline. Id. This suggests Respondent has not withdrawn its recognition of the Union, although Petitioner still claims that failure to continue CBA negotiations is a violation. Pet'r Supp. Mem. for T.R.O. p. 13.
Respondent is not privileged to withdraw recognition of the Union unless it has actually lost the support of a majority of employees. See Levitz Furniture, 333 NLRB 717, 717-18 (2001). Thus, Respondent may stop negotiating "at its own peril" if it cannot later prove that the Union actually lost majority support as a defense to the unfair labor charge against it. See id. at 717-18, 725. Accordingly, the first charge regarding the decertification petition will become central to the Administrative Law Judge's ultimate determination on whether Respondent unlawfully withdrew its recognition of the Union. However, based on Petitioner's weak evidence in support of the "tainted" signatures on the decertification petition, this Court finds an insufficient showing of likelihood of success to support an award of extraordinary relief.
B. Irreparable Harm
The primary relief Petitioner is seeking here is an order requiring Respondent to resume CBA negotiations with the Union. Pet'r Pet. for T.R.O. p. 7. Either issuing or rejecting the request for injunctive relief may cause irreparable harm to one party or the other. But neither parties' claim of harm appears very strong.
Petitioner argues that employee support for the Union may wane while the NLRB case is proceeding because the Union may be seen as ineffective since it did not successfully negotiate a CBA. Pet'r Supp. Mem. for T.R.O. p. 15. This is the precise harm § 10(j) injunctions were meant to protect against by ensuring the alleged unlawful conduct will not succeed in destroying the Union before the Administrative Law Judge can make a decision. Id. at 16.
However, this claim is somewhat weakened by the facts of the present case. First, this is not an exceedingly complex case, and any harm in not having a CBA will be limited by the short time before the Administrative Law Judge's decision. Second, it is difficult to believe much harm is done each day of delay because: (1) the Union began losing support before Respondent's alleged offenses; and (2) although all offenses were charged by April, the Petitioner did not institute the present proceedings until July. Resp't Opp'n Mem. to T.R.O. p. 23.
Respondent claims irreparable harm may occur if the injunction is issued because of the confusion over whether the Union is the proper party to bargain with. Id. There is evidence that the Union may no longer command support of the majority of employees, and it would therefore irreparably harm the employees to have their collective rights negotiated by a Union they no longer want to represent them. Id. This claim is also somewhat weak because exactly 50% of the represented employees signed the decertification petition and some of those signatures are in dispute.
C. Balance of Hardships
Where the Petitioner and Respondent both demonstrate hardship, the court must determine in its discretion whether the balance tips in the Petitioner's favor before an injunction can be issued. Miller, 19 F.3d at 460-61. Because both sides presented harms of roughly equal gravity, and because Petitioner's likelihood of success on the merits appears questionable, the Court in its discretion finds that the balance of harms does not justify issuing the extraordinary remedy of an injunction.
IV. CONCLUSION
Petitioner has only a minimal likelihood of success on the merits, and neither side makes a strong showing of irreparable harm. Under these circumstances, the extraordinary remedy of a Temporary Injunction must be DENIED.
IT IS SO ORDERED.