find an indication of stricter enforcement of the efficiency policy.
Petitioner responds, however, that even if an employer maintains
pre-existing policies after a union election, it is nonetheless required
to bargain over any discretionary aspects of those policies with a
newly-certified union. In particular, petitioner argues that until the
parties reach agreement on a collective bargaining agreement, or reach an
overall impasse in negotiations, respondent is required to give the Union
notice and an opportunity to bargain over any discipline imposed on the
Ritchie employees, despite any evidence of past practice, because
respondent's managers and supervisors exercise discretion in determining
whether an employee should be disciplined or discharged.
Petitioner relies on Eugene Iovine, Inc., 328 NLRB 39, 1999 WL 298516
(1999), enf'd, 2001 WL 10366 (2d Cir. 2001), a recent decision in which
the Board held that the employer's unilateral reduction in the employees'
hours of work violated sections 8(a)(1) and 8(a)(5) of the Act.
However, Iovine, and the cases on which it relies, concern reduction of
hours, layoffs, or changes in work schedules. The Iovine decision
emphasized that such actions are mandatory subjects of bargaining despite
any past practice; in addition, under the facts in the case, the only
"past practice" was the absolute discretion given to the employer to
reduce employees' hours of work. Id. at *6. Such unlimited discretion is
not a "practice" which has evolved into a term or condition of
employment. Id. By contrast, an employer can enforce existing rules or
standards regarding discipline or efficiency standards without bargaining
with the union. See The Trading Port, Inc., 224 NLRB 980, 983 (1976)
Even under the liberal standard applicable to section 10(j) petitions
for temporary injunctive relief, and taking into account the deference
given to the Director's decision to pursue this case, the court finds
that petitioner has not met the minimal burden of showing even a fair
chance of success on the merits.
2. Irreparable Harm and Balancing Hardships
Petitioner argues that injunctive relief is warranted because
respondent's actions, "by their highly detrimental nature, " could
"chill" the activities of the Union and the employees' support of the
Union. Petitioner asserts that Ritchey employees have begun to question
why the Union has been unable to help them and to believe the Union has
abandoned them. Petitioner argues that respondent's unilateral and
disciplinary changes have signaled to the employees that they will not
benefit from their decision to unionize. Petitioner contends that
injunctive relief is necessary to "neutralize these threatening and
discriminatory messages" and to prevent a loss of employee interest in
the Union, which a Board order cannot remedy. Petitioner also asserts
that respondent's changes threaten to harm the Union's ability to engage
in effective collective bargaining.
Parties seeking injunctive relief must show they will be exposed to
"some significant risk of irreparable injury" if such relief is denied.
Assoc. Gen'l Contractors of Calif v. Coalition for Econ. Equity,
950 F.2d 1401, 1410 (9th Cir. 1991), cert. denied, 503 U.S. 985, 112
S.Ct. 1670, 118 L.Ed.2d 390 (1992). The more serious the potential
injury, the less demanding courts may be in requiring proof of imminent
harm. FSLIC v. Sahni, 868 F.2d 1096, 1097 (9th Cir. 1989). The court,
however, must presume irreparable injury if petitioner has established a
likelihood of success. Scott, 241 F.3d at 666 (citing Miller, 19 F.3d at
460). If petitioner only shows a "fair" chance of success, the court must
balance the hardships. Id.
The likelihood of success must be examined in the context of the
relative injuries to the parties. The greater the risk of injury to the
respondent if the injunction is granted, the stronger the petitioner's
showing on the merits must be. Steakhouse Inc. v. City of Raleigh, N.C.,
166 F.3d 634, 637 (4th Cir. 1999). Conversely, if the balance of harm
tips more towards the petitioner, the petitioner does not need to show as
strong a likelihood of success on the merits, although the petitioner
must at a minimum have a fair chance of success on the merits. Aleknagik
Natives, Ltd. v. Andrus, 648 F.2d 496, 502 (9th Cir. 1980). "Thus, the
necessary showing of likelihood of success on the merits decreases as the
balance of hardships increases in favor of the movant." Id. (citation
omitted). Where petitioner and respondent each make a showing of
hardship, the district court must use its discretion in determining which
way the balance tips. Miller, 19 F.3d at 460.
Because petitioner does not make a strong showing of a likelihood of
success, it must show that the balance of harm tips strongly in its
favor. The court finds, however, that petitioner's claim that
respondent's actions have caused a loss of confidence in the Union is not
sufficiently supported to establish a risk of irreparable harm.
Moreover, respondent provides evidence that respondent has been meeting
with the Union and negotiating changes in the workplace.
In addition, the burden on respondent, should the court grant the
petition, would clearly outweigh any harm to the petitioner resulting from
not ordering the injunction. Because the Postal Service is Ritchie's only
customer, and controls every aspect of its operation, the workforce must
match the amount of work provided by the Postal Service. Forcing
respondent to rehire workers without increasing the product would
increase costs to the company without increasing revenue. Additionally,
reinstating former employees would disrupt the remaining employees, and
shifting and demoting current employees would create an imbalance in the
shift, forcing some employees to quit or change shifts. Finally,
requiring respondent to rescind its policies would disrupt respondent's
plant operations with regard to efficiency, attendance, discipline and
In accordance with the foregoing, the court hereby DENIES the petition
for a temporary injunction. This order fully adjudicates the petitions
listed at Nos. 1 and 29 on the clerk's docket for this case, and
terminates the case and any pending motions.
IT IS SO ORDERED.