Henderson v. Bluefield Hospital Company, LLC
Filing
20
MEMORANDUM OPINION AND ORDER: The Court DENIES Petitioner's 1 PETITION for Preliminary Injunction without prejudice. Signed by Senior Judge David A. Faber on 9/20/2016. (cc: petitioner and all counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
LISA Y. HENDERSON,
Acting Regional Director
of the Tenth Region of the
NATIONAL LABOR RELATIONS
BOARD, for and on behalf of
the NATIONAL LABOR RELATIONS
BOARD,
Petitioner,
v.
CIVIL ACTION NO. 1:16-cv-06305
BLUEFIELD HOSPITAL COMPANY, LLC d/b/a
BLUEFIELD REGIONAL MEDICAL CENTER
……………………………………………………………………………………………………………
LISA Y. HENDERSON,
Acting Regional Director
of the Tenth Region of the
NATIONAL LABOR RELATIONS
BOARD, for and on behalf of
the NATIONAL LABOR RELATIONS
BOARD,
Petitioner,
v.
CIVIL ACTION NO. 5:16-cv-06307
GREENBRIER VMC, LLC d/b/a
GREENBRIER VALLEY MEDICAL CENTER,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the court is the Petition for Injunctive Relief
filed by Lisa Y. Henderson (“Henderson”), the Acting Regional
Director
of
Region
10,
Subregion
11,
of
the
National
Labor
Relations Board (“NLRB”). (1:16-cv-06305, Doc. No. 1).
Also
pending before the court is a second Petition for Injunctive Relief
filed by Lisa Y. Henderson (“Henderson”), the Acting Regional
Director
of
Region
10,
Subregion
11,
of
the
National
Labor
Relations Board (“NLRB”). (5:16-cv-06307, Doc. No. 1).
Defendants
Bluefield
Hospital
Company,
LLC
(“Bluefield
Hospital” or “Bluefield”) and Greenbrier Valley Medical Center,
LLC (“Greenbrier VMC” or “Greenbrier”), respectively, have opposed
the Petitions. (1:16-cv-06305, Doc. No. 13; 5:16-cv-06307, Doc.
No. 14).1
Petitioner has filed responses. (1:16-cv-06305, Doc.
No. 14; 5:16-cv-06307, Doc. No. 15).
A hearing was held on
September 13, 2016 at the federal courthouse in Charleston, West
Virginia, to consider the merits of the two Petitions in tandem.
(1:16-cv-06305, Doc. No. 15; 5:16-cv-06307, Doc. No. 16).
The
court finds the matter ripe for adjudication.
The pressure point of these cases is the NLRB’s contention
that the defendants have committed unfair labor practices under
Section 8(a)(1) and (5) of the National Labor Relations Act
(NLRA), as amended by the Labor Management Relations Act (LMRA)
of 1947, 29 U.S.C. § 160(j), and as affecting commerce within
the meaning of Section 2(6) and 2(7) of the NLRA.
1
The interim
Both Bluefield Hospital and Greenbrier VMC are alleged to
be owned by the parent company Community Health Services, Inc.
(“CHSI”).
2
injunctive relief which the NLRB seeks from this court in order
to hold in abeyance the status quo ordinarily is referred to as
“§ 10(j) relief.”
Whether the defendants have committed unfair
labor practices under the NLRA is not the dispute before this
court today.
The question solely is whether the preliminary
injunction ought to issue.
In discharging its obligation, this
court is mindful that Ҥ 10(j) relief is extraordinary and that
such relief should be narrowly tailored.” Muffley ex rel.
N.L.R.B. v. Spartan Mining Co., 570 F.3d 534, 545 (4th Cir.
2009).
This is particularly true since Ҥ 10(j) only authorizes
interim injunctive relief ‘reasonably necessary to preserve the
ultimate remedial power of the Board and is not to be a
substitute for the exercise of that power.’” Id. (quoting Schaub
v. Detroit Newspaper Agency, 154 F.3d 276, 279 (6th Cir. 1998)).
Adhering to the United States Supreme Court’s guidance,
this court requires that movants “seeking preliminary relief
[must] demonstrate that irreparable injury is likely in the
absence of an injunction.”
Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 22 (2008) (emphasis in original).
Since the
Acting Regional Director has not satisfied the requisite
“irreparable injury” prong of the preliminary-injunction
inquiry, this court DENIES her Petition without prejudice.
3
I.
FACTUAL BACKGROUND
On January 20, 2016, the National Nurses Organizing
Committee (NNOC), AFL-CIO (“Union”), filed a charge with the
NLRB accusing the defendants of unfair labor practices in
contravention of the salient NLRA provisions.
After the charges
were filed, the General Counsel, on the NLRB’s behalf and
pursuant to Section 10(b) of the Act, issued an Order
Consolidating Cases, Consolidated Complaint and Notice of
Hearing in Cases 10–CA–168085, involving defendant Bluefield
Hospital, and 10–CA–167330, involving Greenbrier VMC, LLC d/b/a
Greenbrier Valley Medical Center.
Both defendants meet the statutory-floor requirements to be
subject to a § 10(j) injunction analysis.
Petitioner makes
various allegations against both defendants.
The background
with respect to each defendant is now discussed in turn.
A. Bluefield Hospital
Bluefield Hospital, a Delaware limited liability company
with an office and place of business in Bluefield, West
Virginia, has been engaged in the operation of an acute-care
hospital providing inpatient and outpatient care.
The following group constitutes a “unit” for the purposes
of collective bargaining within the meaning of Section 9(b) of
the NLRA:
4
All full-time, regular part-time, and per
diem Registered Nurses, including those who
served as relief charge nurses, employed by
Respondent Bluefield at its 500 Cherry
Street, Bluefield, West Virginia hospital;
excluding all other employees, including
managers, confidential employees,
physicians, technical employees, service and
maintenance employees, employees of outside
registries and other agencies supplying
labor to Respondent Bluefield, guards and
supervisors as defined in the Act.
(1:16-cv-06305, Doc. No. 1).
On August 29, 2012, a
representation election among the Bluefield Hospital Unit was
held pursuant to a consent election agreement.
On September 25,
2012, the NLRB certified the Union as the exclusive collectivebargaining representative of the Bluefield Hospital Unit.
On May 6, 2016, the United States Court of Appeals for the
Fourth Circuit, in NLRB v. Bluefield Regional Medical Center,
821 F.3d 534, 547 (4th Cir. 2016), held that Respondent
Bluefield Hospital’s challenge to the Board’s September 2012
certification of the Union was unmeritorious.
The Fourth
Circuit enforced a Board Order requiring Bluefield Hospital to
bargain with the Union.
821 F.3d at 540.
During the period between March 6, 2015 through November 8,
2015, Bluefield Hospital and the Union met for the purpose of
negotiating an initial collective-bargaining agreement with
respect to wages, hours, and other terms and conditions of
employment.
Petitioner alleges that, during this time,
5
Bluefield Hospital “bargained with no intention of reaching an
agreement, insisted upon proposals that were predictably
unacceptable to the Union, made proposals aimed at depriving the
Union of its representational role, and displayed a repeated
unwillingness to adjust differences with the Union.”
06305, Doc. No. 1).
(1:16-cv-
Petitioner, accordingly, contends that
Bluefield Hospital “has failed and refused to bargain in good
faith with the Union as the exclusive collective-bargaining
representative of the Unit.”
Id.
Petitioner seeks a preliminary injunction against Bluefield
Hospital since, in Petitioner’s view, absent the immediate
availability of injunctive relief, “it may fairly be anticipated
that Respondent Bluefield will continue its unlawful conduct
during the proceedings before the Board, with the result that
Respondent Bluefield’s employees will continue to be deprived of
their fundamental right to be represented for the purposes of
collective bargaining as provided for in the Act, creating a
disruptive effect on commerce, all to the detriment of the Act
and public interest.” (1:16-cv-06305, Doc. No. 1).
Petitioner moved for a preliminary injunction before this
court on July 13, 2016.
(1:16-cv-06305, Doc. No. 1).
B. Greenbrier VMC
6
Greenbrier is a Delaware limited liability company with an
office and place of business in Ronceverte, West Virginia.
Greenbrier has been engaged in the operation of an acute-care
hospital providing inpatient and outpatient care.
The following group constitutes a “unit” for the purposes
of collective bargaining within the meaning of Section 9(b) of
the NLRA:
All full-time, regular part-time, and per
diem Registered Nurses, including those who
served as relief charge nurses, employed by
Respondent Greenbrier at its 202 Maplewood
Avenue, Ronceverte, West Virginia hospital;
excluding all other employees, including
managers, confidential employees,
physicians, technical employees, service and
maintenance employees, employees of outside
registries and other agencies supplying
labor to Respondent Greenbrier, guards and
supervisors as defined in the Act.
(5:16-cv-06307, Doc. No. 1).
The Union is a labor organization
under Section 2(5) of the NLRA.
Moreover, within the scope of
Section 2(11) of the NLRA and of Section 2(13) of the NLRA,
respectively, the supervisors and agents of Greenbrier VMC are
or have been Paul Hanna: Human Resources Director; Tammy Lilly:
Intensive Care Unit Director; and Autumn Hayes: Nursing
Supervisor (5:16-cv-06307, Doc. No. 1).
In addition, Jan Ellis
held the position of Director, Employee Relations or Human
Resources Representative, and has served as an agent of
Respondent Greenbrier under Section 2(13) of the NLRA.
7
(5:16-
cv-06307, Doc. No. 1).
Finally, an unnamed attorney has been
the chief negotiator (with respect to collective bargaining) on
Greenbrier’s behalf; this attorney also has served as
Greenbrier’s agent of Respondent within the scope of the same
statutory provision, Section 2(13) of the NLRA.
On August 30,
2012, a representation election among the Greenbrier VMC Unit
was held pursuant to a consent election agreement.
On September
25, 2012, the NLRB certified the Union as the exclusive
collective-bargaining representative of the Greenbrier VMC Unit.
On May 6, 2016, the United States Court of Appeals for the
Fourth Circuit, in NLRB v. Bluefield Regional Medical Center,
821 F.3d 534, 547 (4th Cir. 2016), held that Respondent
Greenbrier VMC’s challenge to the Board’s September 2012
certification of the Union was unmeritorious.
The Fourth
Circuit enforced a Board Order requiring Greenbrier VMC to
bargain with the Union.
821 F.3d at 540.
Since around September 25, 2012, the Union and Respondent
Greenbrier have not reached an initial collective bargaining
agreement, and have also failed to agree to an interim grievance
procedure.
(5:16-cv-06307, Doc. No. 1).
On or about August 6,
2015, Greenbrier issued two written warnings to its employee
Julie Hoffman Jackson and discharged Jackson from employment.
Id.
On August 19, 2015 or thereabouts, the Union requested that
8
Greenbrier bargain collectively about its decision to discipline
and discharge Jackson.
Id.
Since around September 2, 2015, Petitioner alleges that
Greenbrier has refused to bargain collectively with the Union
with respect to Jackson’s discharge.
At various times from
about February 27, 2015 through November 13, 2015, Greenbrier
and the Union met for the purpose of negotiating an initial
collective-bargaining agreement with respect to the Unit’s
wages, hours, and other terms and conditions of employment.
During this time, Petitioner alleges that Greenbrier VMC
“bargained with no intention of reaching an agreement, insisted
upon proposals that were predictably unacceptable to the Union,
made proposals aimed at depriving the Union of its
representational role, displayed a repeated unwillingness to
adjust differences with the Union, insisted to impasse on a nonmandatory subject of bargaining over discretionary discipline
related to indemnification, conditioned bargaining and
furnishing requested information on the Union’s execution of an
indemnification agreement, and failed to furnish the Union with
requested relevant and necessary information.”
Doc. No. 1).
(5:16-cv-06307,
Petitioner, therefore, contends that Greenbrier
VMC “has failed and refused to bargain in good faith with the
Union as the exclusive collective-bargaining representative of
the Unit.”
Id.
9
Petitioner seeks a preliminary injunction against
Greenbrier since, in Petitioner’s view, absent the immediate
availability of injunctive relief, “it may fairly be anticipated
that Respondent Greenbrier will continue its unlawful conduct
during the proceedings before the Board, with the result that
Respondent Greenbrier’s employees will continue to be deprived
of their fundamental right to be represented for the purposes of
collective bargaining as provided for in the Act, creating a
disruptive effect on commerce, all to the detriment of the Act
and public interest.” (5:16-cv-06307, Doc. No. 1).
Petitioner moved for a preliminary injunction before this
court on July 13, 2016. (5:16-cv-06307, Doc. No. 1).
II.
DISCUSSION
A. PROPER LEGAL STANDARD AND FRAMEWORK
“A preliminary injunction is an extraordinary remedy, to be
granted only if the moving party clearly establishes entitlement
to the relief sought.”
Manning v. Hunt, 119 F.3d 254, 263 (4th
Cir. 1997) (internal quotation marks and alteration omitted).
Entitlement to relief is determined by considering four factors:
(1) that the plaintiff “is likely to succeed on the merits,” (2)
that the plaintiff “is likely to suffer irreparable harm in the
absence of preliminary relief, [(3)] that the balance of
equities tips in [the plaintiff’s] favor, and [(4)] that an
10
injunction is in the public interest.”
Winter, 555 U.S. at 20.
The movant must meet each of these factors in order to obtain a
preliminary injunction.
However, satisfying these factors will
not automatically guarantee an injunction.
An injunction “is not granted as a matter of course,”
Salazar v. Buono, 559 U.S. 700, 714 (2010).
remedy” is “never awarded as of right.”
This “extraordinary
Winter, 555 U.S. at 24.
In particular, “‘[i]n exercising their sound discretion, courts
of equity should pay particular regard for the public
consequences in employing the extraordinary remedy of
injunction.’”
Id. (quoting Weinberger v. Romero–Barcelo, 456
U.S. 305, 312 (1982)).
Importantly, “whether to grant the
injunction still remains in the ‘equitable discretion’ of the
[district] court” even when a petitioner has made the requisite
showing.
Christopher Phelps & Assocs., LLC v. Galloway, 492
F.3d 532, 543 (4th Cir. 2007) (construing eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).
The United
States Supreme Court has instructed us that “‘[the] grant of
jurisdiction to ensure compliance with a statute hardly suggests
an absolute duty to do so under any and all circumstances, and a
federal judge sitting as chancellor is not mechanically
obligated to grant an injunction for every violation of law.’”
Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987)
(citing Weinberger, 456 U.S. at 313). Therefore, Winter’s four-
11
part test states only the indispensable elements that a movant
must meet; satisfying these sine qua non factors is necessary
but not always sufficient for a movant to obtain a preliminary
injunction.
This preliminary-injunction analysis assumes, as it must,
the starting principle that § 10(j) “is a limited exception to
the federal policy against labor injunctions” and “is reserved
for ‘serious and extraordinary’ cases when ‘the remedial purpose
of the Act would be frustrated unless immediate action is
taken.’” Sharp v. Parents in Cmty. Action, Inc., 172 F.3d 1034,
1037 (8th Cir. 1999) (quoting Minn. Mining & Mfg. Co. v. Meter
(3M), 385 F.2d 265, 270 (8th Cir. 1967)).
Consequently, a
district court’s “inquiry should focus initially on the question
of irreparable injury.” Sharp, 172 F.3d at 1039 (emphasis
added); see also McKinney ex rel. N.L.R.B. v. Southern Bakeries,
LLC, 786 F.3d 1119, 1123 (8th Cir. 2015).
The Acting Regional
Director must demonstrate to “th[is] court that the case
presents one of those rare situations in which the delay
inherent in completing the adjudicatory process will frustrate
the Board’s ability to remedy the alleged unfair labor
practices.” 172 F.3d at 1039.
The court must assess the
likelihood of success on the merits, public interest, and
whether the balance of equities tips in the petitioner’s favor—
but “only if the Acting Regional Director clears the ‘relatively
12
high hurdle’ of establishing irreparable harm.”
McKinney, 786
F.3d at 1123 (quoting Sharp, 172 F.3d at 1039).
The D.C. Circuit has articulated, in the main, the proper
standard for demonstrating irreparable harm:
First, the injury must be [likely] and
great; it must be actual and not
theoretical. Injunctive relief will not be
granted against something merely feared as
liable to occur at some indefinite time. It
is also well settled that economic loss does
not, in and of itself, constitute
irreparable harm. . . . Implicit in each of
these principles is the further requirement
that the movant substantiate the claim that
irreparable injury is ‘likely’ to occur.
Bare allegations of what is likely to occur
are of no value since the court must decide
whether the harm will in fact occur. The
movant must provide proof that the harm has
occurred in the past and is likely to occur
again, or proof indicating that the harm is
certain to occur in the near future.
Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)
(internal citations omitted).
This is a persuasive exposition
of the irreparable-harm prong.
Indeed, consistent with this
restatement, the United States Supreme Court in Winter required
not only that the injury be far more than speculative, but also
that it be real and actual.
555 U.S. at 22.
In addition, a
district court may not grant a preliminary injunction “unless
the Director has shown that irreparable harm is ‘likely’; the
‘possibility’ of harm is insufficient to meet the Director’s
13
burden.”
Small v. Avanti Health Systems, LLC, 661 F.3d 1180,
1191 (9th Cir. 2011).
B. ANALYSIS
1. The NLRB Has Not Demonstrated the Existence of Factors Such
as Declining Employee Support for the Union
In an important respect, Muffley ex rel. N.L.R.B. v.
Spartan Mining Co., 570 F.3d 534 (4th Cir. 2009), which is a
pre-Winter opinion of the Fourth Circuit, stated the nowobsolete benchmark for irreparable harm: the proper standard is
the likelihood of irreparable harm, not the mere possibility
thereof.
Id. at 543—44.
The Muffley Court held that
“potentially irreparable . . . harm” suffices for the purpose of
obtaining a preliminary injunction.
added).
Id. at 544 (emphasis
But the United States Supreme Court in Winter changed
all this since, in the Winter Court’s own words, “the . . .
‘possibility’ standard is too lenient.”
Winter, 555 U.S. at 22.
Muffley found an irreparable harm to exist since “even a wellestablished union . . . might well lose support over time, such
that when the [NLRB] does issue its order, it might be
impossible for the union to reconstitute.”
Id.
Muffley is also
a case upon which the Acting Regional Director substantially
relies now, both at oral argument and in her filings. (1:16-cv06305, Doc. Nos. 4, 13, 14).
14
Not only does the analysis in Muffley suffer from a flawed
standard and has accordingly been superseded by Winter, its
facts are also distinguishable from the cases at hand.
Before
this court, the NLRB has asserted that “employee support is
likely to wane due to a lack of understanding as to why
bargaining is taking so long” insofar as the defendants are
concerned (1:16-cv-06305, Doc. No. 4; see also 5:16-cv-06307,
Doc. No. 5 (“Employee support is likely to continue to wane due
to a lack of understanding as to why bargaining is taking so
long.”)).
The NLRB has not demonstrated that “employee support
[for the Union] is likely to wane” and, at any rate, the
causation between decreasing employee support and a slow
bargaining process under the circumstances present here is
purely speculative.
In addition, several registered nurses
(RNs) have shown consistent commitment to the Union as members
of its bargaining committee.
See Affidavits of Mahon (pp. 2,
4); Meadwell 1 (pp. 1, 5); and Galuszek (pp. 1, 4), 1:16-cv06305, Doc. No. 4.
Moreover, various RNs have asserted their
spirited support of the Union, which they have demonstrated by
engaging in handbilling, speaking at conferences, meeting
attendance, delivery of letters to Hospital administrators, and
conversations with fellow RNs.
See Affidavits of Meadwell 1
(pp. 3, 7, 12); and Galuszek (pp. 4, 5, 7), 1:16-cv-06305, Doc.
No. 4.
Finally, the assertive posture that the Union has taken
15
to represent the RNs (throughout 2015), particularly by filing
numerous unfair labor practice charges on the nurses’ behalf,
indicates that the employees probably will not perceive the
Union as weak and will not vote with their feet by leaving it.
See, e.g., Osthus v. TruStone Financial Federal Credit Union,
2016 WL 1643770, at *12 (D. Minn. 2016) (employee awareness of
union efforts to “undo” the employer’s “allegedly offending acts
and fight for those employees” usually generates inference that
“the risk of the Union being perceived as weak or ineffective is
reduced”).
Therefore, this collated evidence adequately
disputes the NLRB’s claim about waning employee support.
This
evidence renders it less than “likely” that an injury is
occurring, let alone that such an injury will be irreparable.
Winter, 555 U.S. at 20.
The NLRB has not furnished any convincing evidence to
substantiate its position regarding the Union’s loss of employee
support.
In the Bluefield Hospital case, RN Meadwell stated
that no RN has complained to her about the paucity of bargaining
sessions.
See Affidavit of Meadwell 2 (p. 12), 1:16-cv-06305,
Doc. No. 4.
Moreover, the court cannot detect any dearth of
employee support from the Mahon affidavit.
Moreover, the press
interview that is discussed in the Galuszek affidavit took place
more than two years prior to the alleged unfair labor practices;
the media wanted to interview the RNs picketing Bluefield, which
16
Bluefield Hospital allegedly did not allow on hospital property.
See Affidavits of Meadwell 1 (p. 9); Galuszek (p. 4), 1:16-cv06305, Doc. No. 4.
In the Greenbrier VMC case, several affidavits show that
bargaining unit members frequently “contact the Union with
(5:16-cv-06307,
questions and for representation by the Union.”
Doc. No. 14); see Affidavits of Mahon 1 (p. 1); Mahon 2 (p. 15);
Jackson (pp. 18—19), 5:16-cv-06307, Doc. No. 5.
At Greenbrier,
Union representative Michelle Mahon’s affidavits say nothing about
diminishing Union support.
cv-06307, Doc. No. 5.
See Affidavits 1 and 2 of Mahon, 5:16-
In addition, both Mahon and RN Michelle
O’Bryan asserted that they habitually explain to the RNs how the
Union is advocating on their behalf and representing them
vigorously.
See Affidavits of Mahon 2 (p. 10); O’Bryan (pp. 1, 2,
5), 5:16-cv-06307, Doc. No. 5.
Lastly, O’Bryan pointed out that
the RNs were informed that the Union has raised Charges and legal
challenges in its effort to represent the RNs.
O’Bryan (p. 5), 5:16-cv-06307, Doc. No. 5.
See Affidavit of
Thus, the court may
not draw the inference that the Union’s strength has decreased,
let alone speculate as to the cause of such (non-existent)
decrease, since the time of the Union’s certification.
Had the
court found objective evidence indicating a decrease in employee
support for the Union, then the court would assiduously have
endeavored to ascertain the cause of such decrease.
17
Besides, for reasons of its own, the NLRB delayed
initiating the proceedings.
The allegations contained in the
NLRB’s Complaint arise from sessions that occurred from late
February 2015 through November 2015.
The Union filed its Charge
concerning the alleged unfair labor practices on January 20, 2016.
Consequently, while the NLRB ostensibly was in a position to issue
a Complaint long before March 10, 2016 (when the Complaint actually
was issued), the General Counsel did not prosecute this case.
Rather, the Board combined the case into a more complex matter, one
that would progress unhurriedly.
Consequently, if delay it be,
then such delay is caused by the NLRB’s own strategic
considerations.
The NLRB, contrary to its own assertion, is not
trying “to avoid delay,” but instead has been a principal catalyst
in promoting it. (1:16-cv-06305, Doc. No. 4; 5:16-cv-06307, Doc.
No. 5).
2. The NLRB’s Remedies Will Be Adequate
Irreparable harm exists only when the remedy will become
unavailable unless a preliminary injunction is granted and the
district court’s judgment, even if it is favorable, will remain
unsatisfied.
By contrast, when the remedy can be satisfied at
the conclusion of the Board proceedings, an injury is not deemed
to be “irreparable.”
In Hughes Network Systems, Inc. v. InterDigital
Communications Corp., 17 F.3d 691, 693—94 (4th Cir. 1994), the
18
Fourth Circuit observed that a preliminary injunction is not
normally available where the harm at issue can be remedied by
money damages.
At the same time, this court is heedful that
“[e]ven if a loss can be compensated by money [or other] damages
. . ., extraordinary circumstances may give rise to the
irreparable harm required for a preliminary injunction.”
694.
Id. at
But such “extraordinary circumstances” are designed to be
rarely invocable exceptions.
Id.
The Fourth Circuit explained
that such circumstances may exist where, for example, “the
moving party’s business cannot survive absent a preliminary
injunction or where damages may be unobtainable from the
defendant because he may become insolvent before a final
judgment can be entered and collected.”
Id. (internal
quotations marks and alterations omitted).
None of these
drastic consequences is expected to befall the Union.
Moreover, “[i]n the narrow circumstances in which
preliminary injunctions are warranted despite the adequacy of
money damages, injunctions are ‘carefully tailored, generally
operating simply to preserve the plaintiff’s opportunity to
receive an award of money [or other] damages at judgment.’”
Bethesda Softworks, L.L.C. v. Interplay Entertainment Corp., 452
F. App’x 351, 353—54 (4th Cir. 2011) (citing Hughes Network, 17
F.3d at 693—94).
The Fourth Circuit distilled the general
principle that applies to this case: “The traditional office of
19
a preliminary injunction is to protect the status quo and to
prevent irreparable harm during the pendency of a lawsuit
ultimately to preserve the [adjudicator’s] ability to render a
meaningful judgment on the merits.” In re Microsoft Corp.
Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003).
Hughes
envisions, for instance, that insolvency may alter the status
quo and undercut the decision-maker’s final ability to have its
judgment satisfied.
See Hughes, 17 F.3d at 694.
The decision-
maker here is the NLRB and eventually, on a more limited and
deferential basis when the statute is silent or ambiguous, the
Circuit Court of Appeals where an appeal is lodged.
See
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 843 (1984) (second step of Chevron analysis
inquiring whether the agency interpretation is a “permissible
construction of the statute”).
As a result, the irreparable-
harm prong might be satisfied when the preliminary injunction
actually is necessary “to preserve the plaintiff’s opportunity
to receive an award of money [or other] damages at the
judgment.”
Hughes, 17 F.3d at 694.
With respect to the
Petitions at hand, then, the injunctive relief that the NLRB
seeks would have to preserve the Respondents’ status or assets
such that the NLRB “could satisfy a judgment in the event [the
NLRB] prevails on the merits.”
Bethesda Softworks, 452 F. App’x
at 353—54.
20
The NLRB has not demonstrated in either case that availing
itself of this court’s interim-injunctive-relief authority will
be any more effective than utilizing its own expansive remedial
powers.
Along with other authorities, the United States Supreme
Court frequently has affirmed this expansive NLRB authority to
identify and then rectify the unfair labor practices in which an
employer allegedly has engaged.
See Franks v. Bowman Transp.
Co., Inc., 424 U.S. 747, 769 (1976) (recognizing NLRB authority
“‘to take measures designed to recreate the conditions and
relationships that would have been had there been no unfair
labor practice.’”) (citing Carpenters v. NLRB, 365 U.S. 651, 657
(1961) (Harlan, J., concurring)); Fibreboard Paper Prods. Corp.
v. NLRB, 379 U.S. 203, 216 (1964) (“The Board’s power [to order
remedies] is a broad discretionary one, subject to limited
judicial review.”); McKinney ex rel. N.L.R.B. v. Southern
Bakeries, LLC, 786 F.3d 1119, 1125 (8th Cir. 2015) (noting the
NLRB’s broad remedial powers to remedy employer violations in
the shape of unfair labor practices); Medallion Kitchens, Inc.
v. NLRB, 811 F.2d 456, 460 (8th Cir. 1987) (observing that the
NLRA affords “the Board broad latitude in fashioning remedies
for unfair labor practices”).
To illustrate further, should an
employer commit misconduct while she is at the bargaining table,
so to speak, the NLRB may mandate the employer to reimburse the
corresponding labor organization for bargaining expenses.
21
See
HTH Corp., 361 NLRB No. 65 (2014) (recognizing NLRB’s power to
order reinstatement, front pay, back pay, wide-ranging ceaseand-desist orders, furnishing the Union with relevant
information, and notice-reading requirement, among other
remedies).
With respect to labor schedules and other routine incidents
of employment, such equitable benefits may be recouped later
through pecuniary or equitable relief, should the NLRB prevail
in the Board proceedings.
At any rate, the court will not “find
irreparable harm whenever employees could be without the
nonmonetary benefits of collective bargaining while awaiting the
Board’s action.”
McKinney, 786 F.3d at 1125.
Indeed, if the
“temporary absence of a union representative,” even when
adjusting for the facts that “the Union lacks majority support
and the Company has not acted to oust and replace union members
or reduce employee benefits,” does not produce a finding of
irreparable harm, as was the case in McKinney, then the facts
present here do not do so either.
Id.
This is so because the
delays in bargaining, limited number of bargaining sessions, and
allegedly scanty results that the bargaining sessions have
engendered do not raise any such extraordinary circumstances.
The cases in which preliminary injunctions have been issued
contain unique factors, which are absent here.
See, e.g.,
Lineback ex rel. NLRB v. Irving Ready-Mix Inc., 653 F.3d 566,
22
568 (7th Cir. 2011) (employer ejected the union while a strike
was in progress, decreased employee benefits, and directly
negotiated with non-union employees); Frankl v. HTH Corp., 650
F.3d 1334, 1363 (9th Cir. 2011) (when employer refuses, in bad
faith, to negotiate and also unilaterally withdraws union
recognition, without objective evidence of decreased union
support, this conduct may “demonstrate the likelihood of
irreparable injury, absent some unusual circumstance indicating
that union support is not being affected or that bargaining
could resume without detriment as easily later as now”);
Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 298—99 (7th
Cir. 2001) (without an injunction, the NLRB’s reinstatement of
discriminated-against former employees would be unrealistic as
the employees may be unavailable; the defendant’s employees were
“working without the advocacy of their chosen representative”);
Asseo v. Pan Am. Grain Co., 805 F.2d 23, 26—27 (1st Cir. 1986)
(irreparable harm exists when “the employer continue[s] its
threats of discharge or plant closings even during the hearings
before the ALJ on the previous unfair labor practices”).
On top
of this, the pre-Winter cases are largely inapplicable since
Winter altered the irreparable-harm standard to “likely” from
“possible.”
Moreover, the factors that might effectively have
stultified bargaining — e.g., the defendants’ revocation of
23
Union recognition as the nurses’ collective-bargaining
representative, a rival labor organization’s paramountcy over
this Union as the voice of the nurses, or a serious effort to
decertify the Union — are non-existent here.
The court has been
advised in the Bluefield Hospital case, for instance, that “unit
employees may move, retire, or seek other employment while Board
proceedings are pending,” a consequence of the “passage of
time.”
(1:16-cv-06305, Doc. No. 4).
“irreparable.”
But none of this is
Nor do these garden-variety considerations
justify a remedy that is extraordinary since these kinds of
changes exist in all manner of contentious cases, including the
vast majority of cases and petitions which do not warrant
preliminary injunctions.
In a way, the court concludes where its analysis began: §
10(j) “is a limited exception to the federal policy against
labor injunctions” and “is reserved for serious and
extraordinary cases . . . .” Sharp, 172 F.3d at 1037 (internal
citations and quotation marks omitted).
is a principle of equity.
Preliminary injunction
“Of course, Congress may intervene
and guide or control the exercise of the courts’ discretion, but
we do not lightly assume that Congress has intended to depart
from established principles. . ..”
Amoco Prod. Co., 480 U.S. at
542 (citing Weinberger, 456 U.S. at 313).
In fact, “[u]nless a
statute in so many words, or by a necessary and inescapable
24
inference, restricts the court’s jurisdiction in equity, the
full scope of that jurisdiction is to be recognized and
applied.” Amoco Prod. Co., 480 U.S. at 542 (internal citation
and quotation marks omitted).
If Congress believed that the
circumstances here warranted a finding of irreparable harm or,
better yet, a less stringent standard to obtain a preliminary
injunction, then Congress might have so stipulated.
Congress
has not done so; instead, Congress has subjected the facts
present in this case to the same rules applicable elsewhere in
the law governing preliminary injunctions.2
Especially since the category of equitable benefits is
discrete and identifiable, it is all the more deducible that the
NLRA’s (or any other statutory) text does not authorize the
federal courts to enter a preliminary injunction on the remote
2
“Men may intend what they will; but it is only the laws
that they enact which bind us.” Antonin Scalia, “Common-Law
Courts in a Civil-Law System: The Role of United States Federal
Courts in Interpreting the Constitution and Laws,” in A MATTER OF
INTERPRETATION: FEDERAL COURTS AND THE LAW 17 (Amy Gutmann ed., 1997);
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS 29 (2012) (“In the interpretation of legislation, we aspire
to be ‘a nation of laws, not of men.’ This means (1) giving
effect to the text that lawmakers have adopted and that the
people are entitled to rely on, and (2) giving no effect to
lawmakers’ unenacted desires.”); id. at 30 (“Subjective intent
is beside the point.”). Here, both Congress’ words and its
intent indicate the strictures pertaining to preliminary
injunctions. Once a movant cannot satisfy that a harm is
actually likely to be not just general, but actually
irreparable, then her petition for a preliminary injunction must
be denied.
25
possibility that some equitable benefits of the employees might
otherwise be lost.
Nor, of course, do the principles of equity.
Courts must presuppose that Congress was aware of this discrete
and identifiable class of labor benefits, just as Congress is
aware of the legal framework into which it will be embedded.
See Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) (“We
assume that Congress is aware of existing law when it passes
legislation”).
Still, Congress chose not to carve out a novel
jurisprudence of injunctions especially for this purpose (or
class of purposes).
The federal courts, in the modest discharge
of their limited role in our constitutional scheme, must respect
this choice that the principles of equity as well as the First
Branch have made.
We have no creative license to infer a contrary outcome
here since “Congress . . . does not alter the fundamental
details of a [statutory] scheme in vague terms or ancillary
provisions—it does not, one might say, hide elephants in
mouseholes.”
Whitman v. American Trucking Associations, 531
U.S. 457, 468 (2001).
Such a “textual commitment” and election
made by the equitable principles, which Congress has chosen to
leave undisturbed, “must be a clear one” in order for the
federal courts to accord it any effect.
can divine no such thing.
26
Id.
Here this court
In sum, then, the court does not see any legitimate grounds
for finding irreparable injury here.
Consequently, the court
need not examine the other preliminary-injunction requirements
that Winter recognizes.
See Sharp, 172 F.3d at 1039.
The
preliminary injunctions that Petitioner seeks are unwarranted.3
III. CONCLUSION
For the foregoing reasons, the court DENIES the Petitions
for Preliminary Injunction without prejudice.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to plaintiff and to all counsel of record.
IT IS SO ORDERED this 20th day of September, 2016.
ENTER:
David A. Faber
Senior United States District Judge
3
Based on Petitioner’s representations, the court is
assured that discovery is unnecessary and will not aid the
adjudicative process insofar as these Petitions are concerned.
27
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