Baudler v. American Baptist Homes of the West

Filing 48

ORDER GRANTING NLRB'S PETITION FOR AN INJUNCTION UNDER SECTION 10(j) OF THE NATIONAL LABOR RELATIONS ACT. Signed by Judge Claudia Wilken on 7/19/2011. (cwlc2, COURT STAFF) (Filed on 7/19/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 11-2480 CW
WILLIAM A. BAUDLER, Regional Director
of the Thirty-Second Region of the
National Labor Relations Board, for
and on behalf of the National
Relations Board,
Petitioner,

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v.
AMERICAN BAPTIST HOMES OF THE WEST,
doing business as PIEDMONT GARDENS,

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For the Northern District of California

United States District Court

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ORDER GRANTING
NLRB’S PETITION FOR
AN INJUNCTION UNDER
SECTION 10(j) OF THE
NATIONAL LABOR
RELATIONS ACT

Respondent.
/

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Regional Director of the Thirty-Second Region of the National

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Labor Relations Board (NLRB) William A. Baudler, for and on behalf

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of the NLRB, petitions for an injunction against Respondent

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American Baptist Homes of the West pursuant to section 10(j) of the

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National Labor Relations Act (NLRA), 29 U.S.C. § 160(j).

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Respondent opposes the petition.

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30, 2011.

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by the parties, the Court GRANTS Petitioner’s request.

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The petition was heard on June

Having considered oral argument and the papers submitted

BACKGROUND
In July and August 2010, Service Employees International

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Union, United Healthcare Workers - West brought multiple unfair

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labor practice charges against Respondent.

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that Respondent violated section 8(a)(1), (3) and (5) of the NLRA,

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29 U.S.C. § 158(a)(1), (3) and (5).

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March 24, 2011, the Acting General Counsel of the NLRB brought a

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complaint against Respondent.

The Union contended

Based on these charges, on

Unless otherwise stated, the facts

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below are from the record developed in the administrative

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proceedings initiated by the Acting General Counsel.1

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Respondent operates the Piedmont Gardens senior living

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community, located in Oakland, California.

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assisted living and skilled nursing services to approximately 300

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residents.

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Piedmont Gardens’s nursing, dietary, resident service, and “general

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and administration” departments.

The facility provides

The Union represents between 100 and 125 employees in

EX 754; Morgenroth Decl. ¶ 7.

began negotiations with Respondent for a new collective bargaining

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For the Northern District of California

In February 2010, members of the Union’s bargaining committee

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United States District Court

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agreement (CBA).

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30, 2010.

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2010.

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The most recent CBA was set to expire on April

The parties were not able to conclude a new CBA by June

On June 17 and 18, 2010, the Union conducted a strike

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authorization vote in Piedmont Gardens’s employee break room.

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While the vote was being held, Piedmont Gardens’s Executive

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Director Gayle Reynolds asked three Union-member employees, who

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were assisting with the vote, to leave the premises.

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Reynolds asked Sheila Nelson, an employee and bargaining committee

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member, to leave.

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Eastman and Geneva Henry, two Union-member employees, to leave.

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Ultimately, the employees voted to authorize the bargaining

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committee to call a strike if the committee believed it to be

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necessary.

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On June 17,

The following morning, Reynolds asked Faye

In ejecting Nelson, Eastman and Henry, Reynolds relied on the
facility’s so-called “No-Access Rule,” which provides:

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All citations to the administrative hearing record bear the
prefix “EX.”
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Employees may not clock-in for duty before their shift
begins, nor are they to remain on the grounds after the
end of their shift, unless previously authorized by their
supervisor. Employees must have supervisor authorization
before working/incurring overtime.

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EX 935, 952.

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police the employees” with respect to the rule, but instead

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“expect[s] them to follow” it.

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recall only one instance, before the strike vote, when the rule had

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been enforced.

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least two to three Union meetings in the break room.

According to Reynolds, Respondent does not “generally

EX 384:18-19.

Reynolds could

Indeed, before June 2010, Nelson had attended at
Sanjanette

Fowler, another employee and member of the bargaining committee,

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For the Northern District of California

United States District Court

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likewise conducted Union business “numerous times” on the premises

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on her days off.

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EX 220:22.

On July 9, 2011, after a fruitless negotiating session, the

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bargaining committee called for a strike.

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9, 2010, the Union informed Reynolds that members “will commence a

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strike at 5:00 a.m. on Monday, August 2, 2010 and continue such

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activity unless and until a mutually agreeable resolution has been

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reached.”

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Union stated, “All employees participating in the Unfair Labor

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Practice strike and withdrawal of labor at Piedmont Gardens are

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scheduled to begin at 5:00 AM on Monday, August 2, 2010

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unconditionally offer to return to work at or after 5:00 AM on

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Saturday, August 7, 2010.”

EX 991.

In a letter dated July

In a separate letter dated July 9, 2010, the

EX 993.

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On August 2, 2010, approximately eighty Union-member employees

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went on strike; roughly twenty Union-member employees stayed on the

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job.

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workers and, by the evening of August 2, it believed that it had

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sufficient personnel to get through the strike.

Respondent hired approximately sixty to seventy temporary

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Beginning on

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August 3, Respondent began making permanent offers of employment to

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the temporary employees.

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strike, even though the Union had reaffirmed by fax its previous

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unconditional offer to have members return to work “at or after

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5:00 AM on Saturday, August 7, 2010.”

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respect to the newly-hired employees, Reynolds stated,

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For the Northern District of California

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It continued to do so on each day of the

EX 366-67, 993.

With

I knew that it would take time to acclimate the new
employees to Piedmont Gardens, but the more important
consideration for me was that I knew that those
replacements would come to work if there was another work
stoppage. I assumed that because these people were
willing to work during this strike, they’d be willing to
work during the next strike.
EX 360:10-17.
During the evening of August 6, 2011, the last day of the

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strike, the Union’s attorney Bruce Harland and Respondent’s

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attorney David Durham conversed by telephone about the replacement

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of strikers.

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intended to “permanently replace about 20 or so employees” because

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“Piedmont Gardens wanted to teach the strikers and the Union a

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lesson.”

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recollection of their conversation.

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that twenty to twenty-five Union-member employees would be

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permanently replaced, but asserts that he did not state that the

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intent was “to teach the strikers and the Union a lesson.”

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Instead, Durham maintains that he stated, “Bruce, we all know

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permanent replacements happen in strikes.”

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Harland contends that Durham told him that Respondent

EX 203:8-9, 24-25.

Durham disputes Harland’s
Durham recalls telling Harland

EX 588:15-16.

Respondent extended forty-four offers of permanent employment

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during the strike.

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eighty strikers were denied reinstatement to their original

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positions.

As a result, thirty-eight of the approximately

Since then, Respondent has offered thirty of the
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thirty-eight “substantially equivalent or alternative positions.”2

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Morgenroth Decl. ¶ 9.

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Union strikers to their original positions.

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However, it has reinstated only thirteen

In an affidavit dated March 15, 2011, Myriam Escamilla, the

lost the support of the members who went back to work.”

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She notes that no more than two presently-working Union members at

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Piedmont Gardens attended “two pickets and several candlelight

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vigils at the facility in support of the replaced strikers.”

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She also points to the absence of any presently-working Union

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For the Northern District of California

Union’s Nursing Home Division Director, asserts that “the Union has

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United States District Court

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members at a luncheon at the Union hall intended to “rebuild

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camaraderie among the members.”

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that, as of the date of her affidavit, the “Union hasn’t filed a

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single grievance since the strike.”

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this point with evidence that, on February 7, 2011, the Union

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presented it with a grievance by Matilda Imbukwa, a Piedmont

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Gardens employee.

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Respondent disputes

In its absence, Respondent

Petitioner seeks an injunction, to be in effect pending the
disposition of the NLRB proceedings, that enjoins Respondent from:
(1)

Maintaining and enforcing a rule denying off-duty
employees access to its premises for union activity while
allowing off-duty employee access to its premises for
other reasons;

(2)

Refusing to reinstate employees to their former positions
of employment because the employees joined or assisted
the Union including participating in a strike, or because

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EX 1005.

continues to follow the expired CBA.

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Id.

Finally, Escamilla contends

A new CBA has yet to be concluded.

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Id.

EX 1004.

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Respondent defines “substantially equivalent” to mean
“positions with identical titles, employment status, and shifts.”
Morgenroth Decl. ¶ 8.
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they engaged in other protected concerted activities for
the purpose of collective bargaining or other mutual aid
or protection;

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(3)

In any like or related manner interfering with,
restraining or coercing its employees in the rights
guaranteed them under Section 7 of the Act.

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He also requests that the injunction provide the following forms of

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affirmative relief, among others: (1) rescission of the

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Respondent’s “discriminatory policy of denying off-duty employees

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access to its premises for union activity;” and (2) offering Union-

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member employees reinstatement to “their former positions and
previous wages and working conditions.”

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For the Northern District of California

United States District Court

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DISCUSSION

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Under section 10(j) of the NLRA, the NLRB may petition “any

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United States district court, within any district wherein the

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unfair labor practice in question is alleged to have occurred or

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wherein such person resides or transacts business, for appropriate

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temporary relief or restraining order.”

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Section 10(j) authorizes a court to issue an injunction if doing so

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would be “just and proper.”

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court must keep “in mind that the underlying purpose of Section

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10(j) is ‘to protect the integrity of the collective bargaining

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process and to preserve the Board’s remedial power while it

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processes the charge.’”

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F.3d 950, 957 (9th Cir. 2010) (quoting Miller ex rel. NLRB v. Cal.

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Pac. Med. Ctr., 19 F.3d 449, 455 (9th Cir. 1994), abrogated in part

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by, Winter v. Natural Resources Defense Council, Inc., ___ U.S.

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___, 129 S. Ct. 365 (2008)).

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Id.

29 U.S.C. § 160(j).

In rendering its decision, a

McDermott v. Ampersand Publ’g, LLC, 593

Courts apply “the traditional equitable criteria used in
deciding whether to grant a preliminary injunction” when
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determining whether to grant a section 10(j) injunction.

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McDermott, 593 F.3d at 957.

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injunction, Petitioner must “establish that he is likely to succeed

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on the merits, that he is likely to suffer irreparable harm in the

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absence of preliminary relief, that the balance of equities tips in

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his favor, and that an injunction is in the public interest.”

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S. Ct. at 374.

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issue where the likelihood of success is such that serious

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questions going to the merits were raised and the balance of

Thus, to obtain a section 10(j)

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Alternatively, “a preliminary injunction could

hardships tips sharply in” Petitioner’s favor, so long as

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Petitioner also demonstrates a likelihood of irreparable harm and

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that preliminary relief is in the public interest.

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the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).3

Alliance for

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A.

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“On a § 10(j) petition, likelihood of success is a function of

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the probability that the Board will issue an order determining that

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the unfair labor practices alleged by the Regional Director

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occurred and that [a reviewing appellate court] would grant a

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petition enforcing that order, if such enforcement were sought.”

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Frankl ex rel. NLRB v. HTH Corp., ___ F.3d ___, 2011 U.S. App.

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LEXIS 14312, at *49 (9th Cir.).4

Likelihood of Success on the Merits

The Ninth Circuit recently

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Respondent suggests that Cottrell does not apply to this
case because it was an “environmental case.” Opp’n at 16 n.10.
This is unpersuasive. Winter, on which McDermott relies, was, like
Cottrell, a case involving claims under the National Environmental
Policy Act of 1969.
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The parties previously disputed the effect of Winter on
Miller. Frankl, which was decided subsequent to McDermott and
Small v Operative Plasterers’ Int’l Ass’n, 611 F.3d 483 (9th Cir.
2010), addresses this question. Although the mandate in Frankl has
(continued...)
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explained in Frankl,
[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.” It is, after all, the Board and not the
courts, which “has primary responsibility for declaring
federal labor policy.” Additionally, and for similar
reasons, “even on an issue of law, the district court
should be hospitable to the views of the General Counsel,
however novel.” Given these considerations, 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. at *50 (quoting Miller, 19 F.3d at 460).
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Application of No-Access Rule During Strike Vote

Petitioner contends that Reynolds’s expulsion of Nelson,
Eastman and Henry during the June 2010 strike authorization vote,
based on Respondent’s No-Access Rule, violated section 8(a)(1) of
the NLRA.

This section prohibits interfering with, restraining, or

coercing employees in the exercise of their collective bargaining
rights under section 7 of the Act.

29 U.S.C. § 158(a)(1).

“An employer has a basic property right to regulate and
restrict employee use of company property.”

Guard Publ’g Co., 351

NLRB 1110, 1114 (2007) (citation and internal quotation marks
omitted).

However, “in enforcing its rules,” an employer “may not

discriminate against Section 7 activity.”

Id. at 1117.

Under NLRB

precedent, “unlawful discrimination consists of disparate treatment
of activities or communications of a similar character because of
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(...continued)
not yet issued, the decision “is nevertheless final for such
purposes as stare decisis, and full faith and credit, unless it is
withdrawn by the court.” Wedbush, Noble, Cooke, Inc. v. SEC, 714
F.2d 923, 924 (9th Cir. 1983).
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their union or other Section 7-protected status.”

Id. at 1118.

The evidence supports a conclusion that this charge likely

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will be sustained.

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enforced the No-Access Rule, which permits a reasonable inference

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that Reynolds singled out Nelson, Eastman and Henry for expulsion

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because they were facilitating the strike authorization vote.

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Respondent offers no other reason why the No-Access Rule was

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enforced on this particular occasion.

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previously permitted off-duty Union-member employees to participate

The record demonstrates that Respondent seldom

Although Respondent may have

in Union-related activities in the break room, this does not

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For the Northern District of California

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extinguish the likelihood that discriminatory enforcement will be

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found in this case.

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Accordingly, the Court concludes that there is a likelihood of

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success on the charge based on Nelson’s, Eastman’s and Henry’s

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ejection.

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charge will be directed at Respondent’s discriminatory enforcement

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of the No-Access Rule.

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Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th Cir. 2011) (stating

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that “injunctive relief . . . must be tailored to remedy the

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specific harm alleged”) (citation and internal quotation and

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editing marks omitted; emphasis in original).

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Injunctive relief ordered by the Court based on this

2.

See Park Village Apartment Tenants Ass’n v.

Failure to Reinstate Striking Employees

Petitioner asserts that Respondent’s failure to reinstate

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Union-member employees who participated in the August 2010 strike

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to their previous positions violated section 8(a)(3), which

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prohibits an employer from engaging in “discrimination in regard to

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hire or tenure of employment or any term or condition of employment

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to encourage or discourage membership in any labor organization.”
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29 U.S.C. § 158(a)(3).

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deny reinstatement based on NLRB v. Mackay Radio & Telegraph Co.,

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304 U.S. 333 (1938).

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an unfair labor practice for an employer not to reinstate employees

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involved in a strike over economic conditions5 so long as it has a

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legitimate and substantial business justification; such a

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justification is the hiring of permanent replacement employees.

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See Mackay, 304 U.S. at 345-46; NLRB v. Fleetwood Trailer Co., 389

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U.S. 375, 378 (1967).

Mackay and its progeny provide that it is not

Petitioner does not dispute that the August 2010 strike was an

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Respondent counters that it was entitled to

economic one.

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(1964), which he contends provides an unlawful-purpose exception to

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the Mackay rule.

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employer with “a legal right to replace economic strikers at will”

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and to hold “that the motive for such replacements is immaterial,

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absent evidence of an independent unlawful purpose.”

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805.

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exception to Mackay and that its discussion of an independent

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unlawful purpose is dicta.

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Instead, he cites Hot Shoppes, Inc., 146 NLRB 802

There, the NLRB construed Mackay to provide an

146 NLRB at

Respondent contends that Hot Shoppes does not provide an

Since Hot Shoppes, other NLRB and federal court decisions have

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acknowledged an unlawful-motive exception to the Mackay rule.

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2004 decision, the NLRB stated that, although “an employer’s motive

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for hiring permanent replacements is immaterial,” a violation of

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the NLRA “will still lie if it is shown that, in hiring the

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permanent replacements, the employer was motivated by ‘an

In a

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In contrast, employees “striking in protest of an employer’s
unfair labor practices” are entitled to reinstatement upon an
unconditional offer to return to work. NLRB v. Int’l Van Lines,
409 U.S. 48, 51 (1972).
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Heights, 343 NLRB 1301, 1305 (2004), vacated on other grounds by,

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New England Health Care Employees Union v. NLRB, 448 F.3d 189 (2d

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Cir. 2006).

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decision because it reflected an unwarranted inference by the NLRB.

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New England Health Care Employees Union, 448 F.3d at 193.

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the court reiterated that the NLRA “is violated if ‘an independent

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unlawful purpose’ motivated the hiring of permanent replacements.”

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New England Health Care Employees Union, 448 F.3d at 192 (citing

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Hot Shoppes); see also Indep. Fed. of Flight Attendants v. Trans

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For the Northern District of California

independent unlawful purpose.’”

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United States District Court

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World Airlines, Inc., 1989 WL 60281, at *3 (W.D. Mo.) (noting that

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the “independent unlawful purpose” exception provides “a minuscule

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loophole in the Hot Shoppes rule”).

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Church Homes, Inc. d/b/a Avery

The Second Circuit vacated the 2004 Avery Heights

However,

While no precedential case has applied the unlawful-motive

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exception,6 as Respondent notes, this does not bar its application.

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The Hot Shoppes exception is not inconsistent with Mackay or its

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progeny, as Respondent suggests.

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precedent provides that an employer may deny economic strikers

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reinstatement only if it has a legitimate and substantial business

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reason.

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substantial business reason.

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Hale, 463 U.S. 491 (1983), to assert that “the Supreme Court

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rejected an argument that an employer may not hire permanent

As noted above, Supreme Court

An independent unlawful purpose is not a legitimate and
Respondent cites Belknap, Inc. v.

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On remand, the NLRB applied the exception in the Avery
Heights case under its law-of-the-case doctrine. See 350 NLRB 214,
214 (2007). However, “‘Law of the Case’ decisions do not represent
the general position of the Board and are not binding authority on
administrative law judges in cases other than the single specific
case under discussion.” Raley’s Inc., 311 NLRB 1244, 1249 n.7
(1993).
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replacements unless the employer could prove that it was ‘necessary

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to secure the manpower to keep the business operating.’”

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17:13-15 (emphasis omitted).

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scrutiny applicable to an employer’s decision to hire permanent

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replacements.

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“issue is not posed in this case”).

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argue that Respondent has the burden of proof.

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that the Acting General Counsel carries the burden to show that

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Respondent had an independent unlawful purpose when it hired

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Opp’n at

However, Belknap did not concern the

See Belknap, 463 U.S. at 504 n.8 (stating that this
Further, Petitioner does not
He acknowledges

permanent replacements.
Petitioner proffers sufficient evidence of an independent

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unlawful purpose.

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more important consideration” for her was “that because [the

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replacements] were willing to work during this strike, they’d be

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willing to work during the next strike.”

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reasonably infer from this statement that Reynolds specifically

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sought to replace strikers with individuals who would not vote to

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strike in the future.

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Respondent continued to hire permanent replacements during the

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strike, even though the Union reaffirmed the strikers’

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unconditional commitment to return to work on August 7.7

First, he points to Reynolds’s comment that “the

A fact-finder could

This inference is bolstered by the fact that

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Respondent contends that it was not certain that the
striking employees would resume work on August 7th as promised
because the Union stated in one letter that the strike would
continue “unless and until a mutually agreeable resolution has been
reached.” However, Respondent’s concern is belied by a letter,
sent the same day, that stated that the employees “unconditionally
offer to return to work at or after 5:00 AM on Saturday, August 7,
2010.” Reynolds admitted that this unconditional offer was also
faxed to Piedmont Gardens during the strike. Respondent insists
that the unconditional offer was open-ended because it stated that
(continued...)
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Petitioner also cites Harland’s disputed assertion that Durham

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told him that, by permanently replacing the strikers, Respondent

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wanted to teach a lesson to the striking employees and the Union.

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Durham strenuously contests Harland’s account of their

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conversation.

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preclude the Regional Director from making the requisite showing

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for a section 10(j) injunction.”

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Dunn & Assocs., 241 F.3d 652, 662 (9th Cir. 2001), abrogated on

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other grounds by, Winter, 129 S. Ct. at 375-76.

However, a “conflict in the evidence does not

Scott ex rel. NLRB v. Stephen

If credited by a

fact-finder, Harland’s account would demonstrate an improper

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For the Northern District of California

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purpose in hiring permanent replacements.

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Respondent contends that, even if the Court were to accept

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Petitioner’s interpretation of Reynolds’s statement and credit

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Harland’s recollection, an independent unlawful purpose has not

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been shown.

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“unlawful objective that is extrinsic to the strike.”

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However, it cites no authority to support this interpretation.

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Even if an extrinsic objective were required, Reynolds’s statement

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and Durham’s alleged comment could be viewed as reflecting

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Respondent’s intention to oust the Union.

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extrinsic to the strike.

Respondent argues that such a purpose requires an
Opp’n at 20.

Such a purpose would be

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Consequently, the Court concludes that the NLRB is likely to

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sustain the charge based on Respondent’s failure to reinstate the

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striking Union-member employees.

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legal theory supported by the evidence.

Petitioner presents an arguable

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(...continued)
the employees would resume work “at or after 5:00 AM.” Despite its
purported confusion about this point, Respondent never contacted
the Union to clarify the meaning of the letter.
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B.

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While “a district court may not presume irreparable injury

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with regard to likely unfair labor practices generally, irreparable

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injury is established if a likely unfair labor practice is shown

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along with a present or impending deleterious effect of the likely

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unfair labor practice that would likely not be cured by later

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relief.”

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“likelihood of success as to a § 8(a)(3) violation with regard to

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union activists that occurred during contract negotiations or an

Likelihood of Irreparable Harm

Frankl, 2011 U.S. App. LEXIS 14312, at *69.

A

organizing drive largely establishes likely irreparable harm,

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absent unusual circumstances.”

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Id. at *71.

Petitioner relies primarily on Escamilla’s affidavit to argue

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that the Union and its members at Piedmont Gardens are likely to

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suffer irreparable harm with respect to Respondent’s failure to

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reinstate all of the strikers.

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drop in employee support of the Union hampers its ability to

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bargain.

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necessary to reassure current employees that they may support the

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Union without fearing retaliation by Respondent.

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that Escamilla’s affidavit must be discounted in its entirety

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because it contains hearsay and is based on speculation, not

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personal knowledge.

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seeking a section 10(j) injunction.

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He contends that the significant

He asserts that reinstating all of the strikers is

Respondent argues

Respondent also notes Petitioner’s delay in

Escamilla, as Director of the Union’s Nursing Home Division,

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likely has personal knowledge of member participation in the Union-

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sponsored luncheon, pickets and candlelight vigils and of the

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presently-stalled bargaining process.

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August 2010 strike, approximately eighty to ninety percent of
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She asserts that, before the

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Union-member employees participated in pickets.

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not contest this figure or that, at most, two presently-working

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Union members have participated in Union activities since the

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strike.

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the parties have not negotiated since August 17, 2010, when

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Respondent proposed lower wages and an open-shop arrangement.

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Respondent contends that Escamilla fails to show a causal link

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between the diminished support for the Union and Respondent’s

9

alleged unfair labor practices.

Respondent does

Nor does Respondent dispute Escamilla’s contention that

However, it is reasonable to

assume that Respondent’s ejection of Union-member employees from

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For the Northern District of California

United States District Court

10

the premises during the strike authorization vote and refusal to

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reinstate strikers have chilled member engagement.

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That Petitioner did not seek a section 10(j) injunction until

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two months after the Acting General Counsel filed his complaint

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against Respondent does not suggest that irreparable harm is not

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likely to occur.

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after the administrative proceedings concluded.

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its own, “is not a determinative factor in whether the grant of

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interim relief is just and proper.”

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(citation and internal quotation marks omitted).

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to no other factors, viewed together with Petitioner’s brief delay,

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that show an injunction to be inappropriate.

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Indeed, Petitioner sought an injunction shortly
Further, delay, on

McDermott, 593 F.3d at 965
Respondent points

As noted above, the purpose of section 10(j) is to protect the

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integrity of the collective bargaining process.

25

marshals sufficient evidence that Respondent’s alleged unlawful

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conduct has harmed Union-member employees’ ability to bargain

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collectively.

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has met his burden to show a likelihood of irreparable harm with

Petitioner

Consequently, the Court concludes that Petitioner

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1

respect to Respondent’s failure to reinstate all of the strikers.

2

C.

3

Petitioner contends that the equities weigh in favor of

4

issuing an injunction because, without interim relief, the Union

5

will be unable to bargain collectively and advance employees’

6

interests.

7

because, if required to reinstate all strikers, it “will have more

8

employees than positions available.”

9

that it will have to make additional unemployment insurance

11
For the Northern District of California

United States District Court

10

Balance of Equities

Respondent asserts that the equities weigh in its favor

Opp’n at 27:19.

It suggests

payments, which would hurt its business.
When “considering the balance of hardships, the district court

12

must take into account the probability that declining to issue the

13

injunction will permit the allegedly unfair labor practice to reach

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fruition and thereby render meaningless the Board’s remedial

15

authority.”

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125 represented employees have worked without a new CBA for over a

17

year, and Petitioner has proffered evidence suggesting that

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Respondent’s alleged unlawful labor practices have interfered with

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the collective bargaining process.

20

that the permanent replacements may be harmed if an injunction is

21

granted, the record suggests that any harm stems from Respondent’s

22

decisions that were motivated by an independent unlawful purpose.

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Absent interim relief, the chilling effect of Respondent’s conduct

24

will not be dissipated.

25

not been reinstated may seek other employment, rendering moot

26

relief by the NLRB.

27
28

Miller, 19 F.3d at 460.

Here, approximately 100 to

Although Respondent complains

Further, the remaining strikers who have

Accordingly, the Court concludes that the equities favor the
entry of an injunction.
16

1

D.

2

“In § 10(j) cases, the public interest is to ensure that an

Public Interest

3

unfair labor practice will not succeed because the Board takes too

4

long to investigate and adjudicate the charge.

5

consider the extent to which this interest is implicated under the

6

circumstances of the particular case.”

7

Here, based on the facts of this case, the Court finds that interim

8

relief is in the public interest.

9

otherwise.

11
For the Northern District of California

United States District Court

10

Thus, courts must

Miller, 19 F.3d at 460.

Respondent does not argue

CONCLUSION
For the foregoing reasons, the Court GRANTS Petitioner’s

12

request for a section 10(j) injunction.

13

as a separate order.

14

An injunction will issue

The Court stays the injunction for fourteen days so that

15

Respondent may seek a stay from the Ninth Circuit.

16

Circuit does not grant a stay within this period, Respondent shall

17

comply with the injunction and offer interim reinstatement to the

18

affected employees within fourteen days of the date the stay period

19

expires.

20

If the Ninth

IT IS SO ORDERED.

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Dated: July 19, 2011
CLAUDIA WILKEN
United States District Judge

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