Opinion
Case No. 00-CV-2273-J (POR)
December 14, 2000
MEMORANDUM AND ORDER DENYING PETITION FOR INJUNCTION UNDER SECTION 10(j) OF THE NATIONAL LABOR RELATIONS ACT
This matter comes before the Court on the National Labor Relations Board ("the NLRB" or "the Board') Regional Director, Virginia C. Aguayo's petition for injunctive relief pursuant to Section 10(j) of the National Labor Relations Act ("the Act"). Petitioner Aguayo's request comes based on allegations that the respondent, the San Diego/Imperial Counties Chapter of the American Red Cross ("Respondent" or "the Red Cross") has violated and is violating Sections 8(a)(1) and (5) of the Act by withdrawing its recognition of the International Association of Machinists and Aerospace Workers, District Lodge 725, AFL-CIO ("the Union"). Accordingly, Petitioner seeks appropriate injunctive relief pending the final disposition of the matters currently before the Board. Because the Court finds that Petitioner has failed to make a showing of a likelihood of success on the merits and that a balance of the hardships does not tip in the Board's favor, the petition for injunctive relief is DENIED.
FACTUAL BACKGROUND
Petitioner is the Regional Director of Region 21 of the Board. Respondent is a non-profit organization, incorporated in Washington, D.C. and has a principal place of business in San Diego, CA and a yard facility in El Cajon, CA. Furthermore, Respondent is and was at all material times, engaged in the business of transporting passengers. Pursuant to the requirements of the Act, Respondent is an employer engaged in commerce within the meaning of Sections 2(2), (6), and (7) of the Act. See 29 U.S.C. § 152(2), (6) and (7).
On November 7, 1997, the Union was certified as the exclusive collective-bargaining representative for all transportation department drivers employed by Respondent out of its 880 Fessler, El Cajon, CA facility ("the Unit"). Since that time, the Union was the exclusive bargaining representative for the Unit.
On Tuesday, April 13, 1999, Respondent held a monthly driver training meeting at the facility. Such meetings are generally held on Tuesdays. Respondent also regularly holds make-up meetings on the following Thursday and Saturday for those who were unable to make the Tuesday meeting. Accordingly, Respondent held make-up driver training meetings on April 15, 1999, and April 17, 1999. During each of the meetings, Respondent's Director of Transportation, Donna Warren made certain statements regarding the status of the negotiations between Respondent and the Union and addressed certain rumors that had been circulating around the facility.
In April 1999, Respondent received two decertification petitions signed by more than 50% of the Unit. On or about April 27, 1999, Respondent sent a letter to the Union, by way of its counsel, indicating that it was withdrawing its recognition of the Union as the exclusive collective-bargaining representative of the Unit based upon its allegedly good faith belief that the Union no longer enjoyed majority support. Furthermore, Respondent implemented various pay raises and merit-based bonuses. After Respondent withdrew its recognition and implemented these changes, the Union filed a charge with the NLRB, on or about April 30, 1999, alleging that Respondent had engaged in, and was engaging in unfair labor practices within the meaning of Sections 8(a)(1) and (5) of the Act. (Pet. at § 4). On September 12, 2000, following a field investigation of the case, the Board's General Counsel, through Petitioner, issued a complaint and notice of hearing pursuant to § 10(b) of the Act, alleging the same violations as contained in the Union's charge. (Id. at § 5). Respondent filed an answer to that complaint on September 26, 2000. Currently, that matter is set to be heard before an Administrative Law Judge on December 18, 2000, a week after oral arguments on this petition.
DISCUSSION
I. STANDARD
Section 10(j) of the Act authorizes this Court to grant temporary injunctive relief pending the Board's resolution of unfair labor practice proceedings when it is "just and proper." See 29 U.S.C. § 160(j). The Ninth Circuit has set forth a clear standard as to how the Court is to determine whether injunctive relief is "just and proper." See Miller v. California Pacific Medical Center, 19 F.3d 449 (9th Cir. 1994) (en banc). As an initial matter, the Court should consider traditional equitable criteria. Id. at 459. However, it must keep in mind the underlying purpose of § 10(j), which is to protect the integrity of the collective bargaining process and to preserve the Board's remedial power while it processes a charge. Id. at 459-460.
In exercising its equitable discretion, the Court focuses heavily on the public interest, which is to ensure that an unfair labor practice will not be successful because the Board's investigation and adjudication of the matter may be a protracted process. Id. at 460. Further, it must weigh the likelihood that the Board will succeed on the merits against the possibility of irreparable harm. Id. To establish irreparable harm, Petitioner must show at a minimum that the Board has a fair chance of success on the merits. Id. (quotations omitted).
If the Board is able to show that it is likely to prevail on the merits, then the Court presumes irreparable harm. Id. However, when the unfair labor practice charge is disputed or the Board can only demonstrate a fair chance of success on the merits, then the Court must consider the possibility of irreparable harm. Id. The Court must be mindful that declining to issue an injunction may permit the allegedly unfair labor practice to reach fruition, thereby rendering the Board's remedial power meaningless. Id. Finally, where both parties demonstrate hardships, the court must exercise its sound discretion to determine in whose favor the balance tips. Id. at 460-461.
II. ANALYSIS
A. LIKELIHOOD OF SUCCESS ON THE MERITS
Petitioner argues that injunctive relief is just and proper in this case because there is a strong likelihood that the General Counsel will successfully establish before the Administrative Law Judge ("ALJ") that Respondent engaged in unfair labor practices. In Miller, the Ninth Circuit held that the Board could make a threshold showing of likelihood of success on the merits by showing that there is some evidence to support the unfair labor practice charge, together with an arguable legal theory. Id. at 460. Petitioner identifies four areas of evidence, which if proven true would support an unfair labor practice charge. Petitioner argues that Respondent (1) solicited its employees to decertify the Union, (2) promised the employees more favorable benefits if they decertified the Union, (3) wrongfully withdrew its recognition of the Union, and (4) made unilateral changes.
1. Solicitation and Promises
As stated above, in April 1999, Respondent held three driver training meetings. During each meeting, Respondent's transportation director, Donna Warren ("Warren"), made statements to the drivers about the status of negotiations with the Union, which included information about decertification petitions that were allegedly circulating around the facility. (Opp'n at 4.) The parties do not dispute that these subject matters were discussed but sharply disagree on what statements were made and the context in which they were made. Petitioner argues that Warren solicited the employees to sign a decertification petition and enticed them to do so by promising them increased wages and benefits. (Pet'r. P. A. at 11). Petitioner provides affidavits by employees in attendance at the meeting to support her argument. The employees state that they heard Warren tell the group that there was a list being circulated to oust the Union; that there were 31 signatures and that if they got 7 or 8 more signatures that would be enough to decertify the Union at which time Respondent would give all drivers a merit raise and a bonus. (See. Pet. Exs. 4A-6.) Furthermore, Petitioner alleges that Warren misled the employees by telling them that if they decertified the Union and then wanted it back they could do so at any time.
§ 9(a)(3) of the National Labor Relations Act ("the NLRA") states "no election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held. 29 U.S.C. See 159(a)(3). It is not clear whether Warren's statements were lawful or not. If the employer's withdrawal had come after a decertification election held by the Board, her statements would have been incorrect and unlawful. See NLRB v. Americare-New Lexington Health Care Center, 124 F.2d 753 (6th Cir. 1997). However, the Court is unaware of any case law or Board decisions that say that an election cannot be held after an informal decertification process, i.e., after an employer has withdrawn its recognition of the union based upon employee decertification petitions without a Board election.
Respondent argues that the statements Warren made were all lawful and are being presented out of context. It argues that Warren advised the employees that the last proposal the Red Cross made to the Union included raises for everyone, as well as certain bonuses and certain other increases but that the offer had been rejected and it could not make any changes as long as the Union was in place. (Opp'n. at 4-5.) Furthermore, Warren told the drivers that she heard there was a petition circulating but that Respondent did not start the petition and that the promises Respondent allegedly made had not been and could not be made. (Id. at 5.) Respondent does admit though that Warren told the drivers that if the petition was signed by more than half the drivers that Respondent would no longer recognize the Union. (Id.) Moreover, it would not need to agree with the Union in order to make the proposed changes and could make such changes on its own. (Id.)
It argues that Warren, per Red Cross protocol, read from a script prepared by counsel to avoid making any improper statements. A copy of the script was provided to the Court for an in camera review.
Respondent also provides affidavits from employees who were at the meetings and declare that they did not hear Warren solicit employees or make promises of raises and bonuses. (See e.g., Opp'n. Ex. G and Ex. J.)
2. Withdrawing Recognition
An employer violates section 8(a)(5) of the Act if it unlawfully withdraws recognition from a union based upon a decertification that it unlawfully solicited and assisted in circulating. Bridgestone/Firestone Inc., 2000 WL 1563168 (N.L.R.B.) To establish a violation, the evidence must establish a causal relationship between the unfair labor practice and the expression of employee dissatisfaction with the Union.
There is a general presumption that the Union enjoys continued majority status; however, it can be rebutted by the employer's production of evidence that it had a good faith belief that the Union no longer enjoyed majority support. See Hotel, Motel Restaurant Employees Local No. 19 v. National Labor Relations Board, 785 F.2d 796, 799-800 (9th Cir. 1986). Once the employer comes forth with such evidence, the burden shifts to the Board to come forward with evidence that the decline in union support was attributable to the employer's commission of unfair labor practices. Id. If the Board cannot affirmatively prove an unlawful "taint", the employer prevails. Id.
a. Causal Relationship
The mere fact that an unfair labor practice occurred prior to a withdrawal of recognition does not automatically cause the withdrawal to be unlawful. Petitioner must demonstrate the causal relationship between Respondent's unlawful conduct and the employees' dissatisfaction with the Union. In other words, the Board must be able to prove that Warren's statements tainted the employee petitions.
If Respondent's withdrawal of recognition was lawful, then the changes that it made were also lawful.
After the April meetings, ten employees signed the petitions, thereby creating a majority of dissatisfied employees. Petitioner argues that Warren's actions sufficiently demonstrate the causal connection between the unfair labor practices and the decertification petition upon which Respondent's withdrawal was based. However, her argument is not as strong as she suggests. Both sides agree that the factors to look at in determining whether there is a causal relationship between the unfair labor practice and the decertification petition are as follows:
(1) the length of time between the unfair labor practices ("ULPs") and the withdrawal of recognition; (2) the nature of the ULPs, including the possibility of their detrimental or lasting effect on employees; (3) any possible tendency to cause employee disaffection from the union; and (4) the effect of the ULP on employee morale, organizational activities, and membership in the union.See Master Slack Corp., 271 NLRB 78, 84 (1984).
In applying these factors, it is clear that the length of time between the alleged ULPs and the withdrawal of recognition was short; in fact it was ten days after the last driver meeting that the employer withdrew recognition. The nature of the alleged ULPs is undoubtedly serious. If Warren made statements that solicited the employees to decertify the Union and made promises of benefits if the employees got rid of the Union, they would undoubtedly be of a nature that the Board would find made the employer's withdrawal unlawful. See e.g., Bridgestone/Firestone, Inc., 2000 WL 1563168 (N.L.R.B.) (Board held that managers' making promises of better benefits, including enhanced holiday and sick leave, if employees went nonunion constituted solicitation and a violation of 8(a)(1) and subsequent withdrawal was a violation of 8(a)(5)). Thus, it is the final two factors that are determinative in this case.
There is no evidence about the effect of the alleged ULPs on employee morale. The evidence shows that prior to the driver meetings only a handful of people were going to the Union meetings and nothing shows that this changed either way after the April meetings. (Goepfert Decl. at 2.) There is a question as to whether the statements Warren made either explicitly or implicitly caused employees to disaffect from the Union. The initial answer would seem to be yes given the nature of the statements. However, ten drivers signed the petitions between April 15, 1999 and April 24, 1999. (Opp'n. Exs. C D.) Six of those employees have identified themselves. Drivers Halvorsen, Cueva and Rivas have sworn that they had no knowledge of the statements allegedly made by Warren, making it unlikely that any statements made impacted their feelings toward the Union. (Opp'n. Exs. H, I, L.) Drivers White and Fowler have sworn that they could not recall any statements made by Warren about changes that the Red Cross would make if the union were no longer in place and that they signed the petition because they simply did not want a union. (Id. at Exs. J K.) Driver[s] Nivens [and Rivas] also indicated that [they] signed the petition because a majority of the other drivers had signed it. (Id. at Exs. G L.) Finally, there is a seventh individual whose name has been redacted but who indicated that he or she had no recollection of Warren making any statement about the changes and that he or she signed the petition because other drivers had already signed it. (Id. at Ex. F.) Accordingly, seven of the ten drivers who signed the petition have signed sworn affidavits indicating that they either did not hear and were unaware of any statements that Warren may have made and/or that their reasons for signing the petition had nothing to do with any alleged promises of changes once the Union was gone. Given these sworn statements, it would be difficult, if not improper for the Court to presume that the employees are lying and that their offered reasons are pretextual. If in fact their reasons are not credible, that is a finding for the ALJ to make. While the reasons why the other three drivers signed the petition or what they may have heard are unknown, the evidence presented by Respondent is overwhelming enough that Petitioner has failed to meet her burden of showing a causal relationship between the alleged ULPs and Respondent's withdrawal. Consequently, Petitioner's likelihood of success in prevailing on the merits at the administrative hearing is fair at best and actually given the evidence presented, her chances are more likely poor.
b. Lawfulness of the Red Cross' Withdrawal
Given the evidence stated above, it seems most likely that there was unrest among the drivers prior to the April meetings. Moreover, Respondent has presented evidence that there were other demonstrations of employee unrest. In particular, no negotiations had taken place since November 1998; there were previous reports to management that many additional drivers wanted to sign the petitions but were being pressured by the Union not to and were afraid to and were afraid to do so; only a handful of employees were attending union meeting; and at two rallies held by the Union, only one driver showed up. (Goepfert Decl. at 2.) Respondent argues that it was upon the petitions and these additional facts that it had a reasonable belief that the Union no longer enjoyed majority support and accordingly withdrew its recognition.
Respondent may, in good faith, rely on the fact that in addition to the petitions, it received additional evidence that the majority of employees did not support the Union. The Ninth Circuit has specifically held that an employer asserting a good faith doubt must provide objective evidence such as the expression of dissatisfaction with the union by a significant minority of union members (emphasis added). Northern Montana Health Care Center v. NLRB, 178 F.3d 1089, 1097 (9th Cir. 1999), citing Allen Mack Sales Serv. Inc. v. NLRB, 522 U.S. 359, 188 S.Ct. 818, 824-25, 139 L.Ed.2d 797 (1998). Thus, Respondent was entitled to rely on the other evidence of employee dissatisfaction as a reason for its withdrawal of recognition and is entitled to present it now even though they did not state this reasoning in 1999.
During oral arguments, Petitioner's counsel argued that Respondent is estopped from asserting that the additional evidence of employee dissatisfaction contributed to its withdrawal of recognition. In her reply, Petitioner cites Seminole Fire Protections, 306 NLRB 590 (1992), to argue that when an employer changes its position on critical issues, it suggests that the proffered reason is pretextual and that the real motivation is unlawful. However, Seminole is factually distinguishable from this case. In Seminole there was evidence that the employer's reasoning for terminating its employee was not truthful; here Petitioner does not deny the truthfulness of the other evidence relied on by Respondent.
Because the Board has failed to demonstrate a likelihood of success on the merits, and even a fair shot at success on the merits seems unlikely, the Court now turns to the issue of the risk of irreparable harm if it does not issue the injunction.
B. POSSIBILITY OF IRREPARABLE HARM
If the Court fails to enter an injunction, the drivers will no longer be represented by the Union that was certified to represent it just over three years ago. Petitioner argues that Respondent played a significant role in the employee dissatisfaction that led to decertification of the Union. She further argues that injunctive relief is necessary and appropriate because given the passage of time the Board's ultimate order will not be able to restore the loss of Union support and the Union's representation. She argues that "Respondent's tainted withdrawal of recognition threatens the Union with the irreparable harm caused by the `drifting away' of its members and their support." (Pet'r. P. A. at 17, citing Brown v. Pacific Telephone Telegraph Co., 218 F.2d 542, 544 (9th Cir. 1955) (as amended), reversing 34 LRRM 2564 (N.D. Cal. 1954).)
The Court notes that in actuality they already have not been represented by the Union since April 1999, over eighteen months ago.
Petitioner also argues that interim relief is particularly necessary in this case because the Union was only recently certified by the Board and has not yet been able to negotiate its first collective-bargaining agreement with Respondent. Accordingly, she argues that if an injunction is not ordered, Respondent will reap the benefits of its unlawful conduct and deprive the employees of the benefits of being represented by their elected representative.
Respondent argues that the changes in the composition of the driver workforce since October 1997 when the Union was elected and even since the time of recognition withdrawal make a bargaining order unjust and improper. (Opp'n. at 18.) In 1997, there were 65 employees eligible to vote for the Union. Today only 28 of them are still employed by Respondent. (Id.) In April 1999, when recognition was withdrawn, there were 79 drivers, of which only 52 are currently employed by the Red Cross. (Id. at 18-19.) of those 52, 23, or just less than half signed the employee petitions. (Id.) Since then an additional 96 drivers have been hired. (Id.) Accordingly, Respondent alleges that 119 of the current workforce of 148 drivers, or over 70%, have never had an opportunity to vote as to whether or not they want Union representation or have said that they do not want it. Accordingly, Respondent argues that requiring it to recognize the Union, which is what it would have to do if an injunction is issued, would equate to an order for all the drivers to be represented by the Union even though the vast majority of them have never expressed a desire for or have opposed such representation.
The purpose of the proposed injunctive relief would be to provide a bargaining order that preserves the bargaining relationship between the parties until the administrative proceeding is completed. The Ninth Circuit held in Miller that the purpose of § 106) relief is to ensure that unfair labor practices do not succeed before the Board is able to adjudicate the charges. Accordingly, this Court must seek to protect the integrity of the collective bargaining process. Each side has presented a strong argument that the employees will suffer irreparable harm depending on whether the Court orders injunctive relief or not. If the Court does not enter injunctive relief and the Board ultimately finds that Respondent's withdrawal was an unfair labor practice, there will be little that the Board will be able to do to remedy the situation at that time. It is likely that by the time the ALJ reaches a finding and appeals to the administrative Board of Appeals and possibly to the Ninth Circuit are completed, any majority support for the Union will likely have dissipated. On the other hand, if the Court does issue an injunction, it may in effect be ordering Respondent to bargain with a Union that the employees do not desire to represent it. Where the Board and the respondent have both made a showing of hardship, the Court must exercise its sound discretion to determine whether the balance tips in the Board's favor. Miller at 460-461. Since both sides have presented risks of irreparable harm, the Court decides in whose favor the balance of hardship tips.
C. BALANCING OF HARDSHIPS
This is a difficult decision for the reasons stated in the preceding section. Clearly, if Respondent did engage in unlawful activity when it withdrew its recognition then a failure to issue an injunction will irreparably harm the employees, who wanted and voted for Union representation. On the other hand, if the employees do not want Union representation, by issuing injunctive relief the Court will be impinging on the employee's statutory rights to choose whether or not to be represented by a union and if so, by whom because it would be forcing them to be represented by the Union. Because the Court finds it unlikely that the Board will prevail on the merits before the ALJ and is greatly concerned that by imposing an injunction it will be forcing the employees to be represented by a union that its members made clear they did not want, it finds that the balance of hardships does not tip in favor of the Board. Accordingly, the Court DECLINES to grant Petitioner's request for injunctive relief.
CONCLUSION
For the reasons set forth above, Petitioner's petition for an injunction under Section 10(j) of the National Labor Relations Act is DENIED.
IT IS SO ORDERED.