into between the two entities specifically provided that PPMC would be merged into Children's and that the latter would be the surviving corporation. Additionally, the separate existence of PPMC ceased and Children's, renamed CPMC, succeed to all rights, property, debts, and liabilities of PPMC.
With respect to the nursing units in particular, there is ample evidence that the two existing entities have continued as separate units. Respondent has instituted some uniform policies with respect to wages, leave, pension, health care and seniority provisions and integrated some administrative functions. However, the vast majority of the nurses continue to work in their former positions in the separate facilities. Moreover, the nurses working in most of the departments at the Children's campus are subject to the same immediate supervisors as when they worked for Children's before the merger. These immediate supervisors possess authority with respect to hiring, discipline, scheduling of work, evaluation of employees, granting time off, and directing work.
In light of all of the above, the court finds that the creation of Respondent was analogous to a stock transfer in which the original corporate employer of the CNA nurses continues in existence.
Accordingly, there is reasonable cause to believe that the changes instituted by Respondent were insufficient to affect the California Campus registered nurses employee attitudes towards union representation, and that the registered nurse unit at the California campus remains an appropriate unit. Therefore, Respondent has an obligation to continue to recognize and bargain with CNA.
2. Just and Proper
Until recently, the Ninth Circuit had not delineated a definitive standard for the "just and proper" prong of the section 10(j) analysis. In Scott v. N.L.R.B., the court held that the "just and proper" element is met by a showing that the "relief is necessary to prevent a frustration of the remedial purposes of the Act." 863 F.2d at 674.
Respondents unilaterally withdrew recognition of CNA. During oral arguments, the parties' estimates for the length of time this matter will remain pending ranged from one to two years. Prior to the merger there were 548 registered nurses at Children's who were CNA members. As of December 31, 1991, 312 nurses ceased to be members of CNA. If an injunction were not issued, after 45 years of representing the nurses at Children's CNA would cease to exist at the California campus.
Reinstatement of recognition of CNA is just and proper under these circumstances. Section 10(j) codifies the strong public interest in maintaining the integrity of the collective bargaining process. Brown v. Pacific Telephone and Telegraph Co., 218 F.2d 542, 544 (9th Cir. 1954). Reinstatement of CNA would serve that purpose by returning to the status quo of the California campus prior to the merger.
Respondent argues that Petitioner has failed to show any animus against CNA; accordingly, absent union animus, the requested injunction would be improper. In support of this argument Respondent notes that it not only continued to recognize other unions which represented a majority of the workers in the combined hospital, but also attempted to obtain a secret ballot election of the nurses to determine if a majority wished to be represented by CNA.
First, the court disagrees that there has been no proof of union animus. While Respondent did recognize other unions, Petitioner presented significant evidence of animus between CPMC and CNA. Specifically, months prior to the merger, officials at PPMC embarked on a campaign to dis courage the PPMC nurses from choosing CNA representation. In light of the fact that a sizable majority of the nurses at the combined hospital are PPMC nurses, Respondent's attempts to secure an election after months of behind the scenes maneuvering offered little chance of a fair election.
Second, Respondent cites no authority which mandates a finding of animus. Eisenberg v. Lenape Products, Inc, 781 F.2d 999 (3rd Cir. 1986), the case relied upon by Respondent, found interim relief inappropriate where there was not only no proof of union animus, but also, where there was no proof that the employer was even aware of the employees "embryonic" efforts to unionize. Id. at 1005.
More important, the standard set by the court of appeals strongly suggests that a finding of animus is unnecessary. The court need not find that an unfair labor practice has occurred. Kobell v. Suburban Lines, Inc., 731 F.2d 1076 (3rd Cir. 1984). All the court need find is that the Board's petition is substantial and not frivolous. Aguayo, supra at 747. This standard must be read in conjunction with the public policy behind section 10(j) to maintain the integrity of the bargaining process. So long as the Board's petition is a reasonable and a just and proper means of ensuring the integrity of the collective bargaining process, a showing of union animus is not required.
1. Petitioner's request for an Injunction under section 10(j) is hereby GRANTED.
2. Respondent is hereby Ordered to recognize CNA as the collective bargaining representative for the nurses at the CPMC's California campus. This Injunction shall remain in effect pending final determination of the N.L.R.B. in the action currently pending before the Board.
3. Respondent is to restore the nurses at the California campus to their pre-June 16, 1991 status quo.
Dated: March 27, 1992
Barbara A. Caulfield
United States District Judge