The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on petitioner Joseph P. Norelli's, Regional Director of Region 20 of the National Labor Relations Board, for an on behalf of the National Labor Relations Board ("petitioner" or the "Board") petition for an injunction under § 10(j) of the National Labor Relations Act. Respondent The Fremont-Rideout Health Group ("respondent" or the "Employer") oppose the petition. The court heard oral argument on April 7, 2009. For the reasons set forth below, the Board's petition for an injunction is GRANTED.
Respondent, a California non-profit corporation, operates acute care hospitals and other medical facilities in Yuba City and Marysville, California. (GC Exh. 1(p).) The California Nurses Association ("CNA" or the "Union") was certified on September 20, 2006, as the bargaining representative of a unit of approximately 450 registered nurses. (Tr. 12, 15.) On October 12, 2007, a decertification petition was filed by respondent's employees. (Tr. 23.) The petition was blocked by the Union's unfair labor practice charges until it was withdrawn on November 21, 2008. (Tr. 23.) The last bargaining session between the Employer and the Union occurred on January 8, 2008. (Tr. 23, 238, 242.) A strike was conducted on March 21, 2008. (Tr. 25.) As of May 21, 2008, the Union's last proposal to respondent was rejected, and the Employer stood on its last, best, and final offer, dated May 14, 2008. (Tr. 24, 298.)
On November 13, 2008, the Employer received evidence that the Union had lost majority status. (Tr. 237.) On November 14, 2008, the Employer withdrew recognition from the Union. (GC Exhs. 2, 3a, 3b.) The Employer based this withdrawal on a petition (the "anti-Union petition") signed by 234 registered nurses employed in the bargaining unit represented by the Union. (GC Exh. 2.) The 234 signatures represented 51.8% of the Unit, which was comprised of 452 employees at the time of the withdrawal of recognition. (Tr. 15-16.) 112 of these signatures were dated over seven months before the November 14 withdrawal; of those 112, 72 were dated over a year before the withdrawal. (GC Exh. 3b.) The Employer notified the Union that the anti-Union petition constituted evidence of CNA's loss of majority status and withdrew recognition of CNA as the exclusive representative of the bargaining unit, effective immediately. (GC Exh. 2.) On November 17, 2008, the Employer notified its employees of the withdrawal of the recognition. (GC Exh. 7.) In the same memo, respondent also informed employees of new beneficial working conditions. (GC Exh. 7.)
At the time it withdrew recognition, the Employer knew that revocations were being circulated by the Union. (Tr. 319.) However, the Union never informed the Employer that it any employee had signed "reaffirmation" documents. After the withdrawal of recognition, on December 15, 2008, petitioner informed the Employer that they were in possession of evidence regarding revocation of decertification signatures. (Tr. 287.)
The Union presented petitioner with cards from 18 petition signers revoking their signatures on the anti-Union petition and reaffirming their support for the Union. (GC Exhs. 13-30.) The Employer first saw these cards in the hearing before the Administrative Law Judge on February 23 and 24, 2008. The revocation cards are dated after the signers' respective signatures on the anti-Union petition and before the Employer's withdrawal of recognition. (GC Exhs. 13-30.) Without these 18 signatures, the petition supporting the withdrawal accounts for only 47.8% of the Unit.
The Union filed an unfair labor practice charge with petitioner on November 21, 2008, alleging an unlawful withdrawal of recognition due to the use of coercion in obtaining signatures. (R Exh. 7.) The Employer was faxed a copy of this charge on December 2, 2008. (R Exh. 7.) On December 12, 2008, the Employer sent its response to the charge to petitioner. (R Exh. 10.) On December 15, 2008, petitioner for the first time advised the Employer of any claimed revocation of signatures from the anti-Union petition. (Tr. 287.) Petitioner issued a complaint on December 23, 2008, alleging that the withdrawal of recognition was unlawful. (Exh. A.) The complaint was later consolidated with a separate charge that had been filed on December 16, 2008. (Exh. A; see Exhs. B-C.)
On February 23 and 24, 2008, the allegations in the consolidated complaint were fully litigated before Administrative Law Judge William N. Cates (the "ALJ"). (Exh. D.) The parties' briefs to the ALJ were filed on April 3, 2009. (Opp'n at 20 n.10.)
Section 10(j) of the National Labor Relations Act ("NLRA") provides that, upon issuance of a complaint charging an unfair labor practice, the Board may petition the appropriate United States district court for appropriate temporary relief or restraining order, and the court "shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper." 29 U.S.C. § 160(j) (2009). Injunctive relief under § 10(j) is intended to preserve the status quo pending final action by the Board. Scott v. Stephen Dunn & Assocs., 241 F.3d 652, 660 (9th Cir. 2001).
In determining whether interim relief is "just and proper" under the NLRA, the court considers traditional equitable criteria in determining whether injunctive relief should be granted. Miller v. Pac. Med. Ctr., 19 F.3d 449, 459 (9th Cir. 1994). The Ninth Circuit has recently clarified the controlling standard for injunctive relief in light of the Supreme Court's decision in Winter v. Natural Res. Def. Council, -- U.S. --, 129 S.Ct. 365 (2008). Am. Trucking Ass'ns, Inc., -- F.3d --, No. 08-56503, 2009 WL 723992, at *4 (9th Cir. Mar. 20, 2009). A party seeking a preliminary injunction must demonstrate that he is likely to succeed on the merits, that irreparable harm is likely in the absence of preliminary relief, that the balance of equities tips in favor of such relief, and that an injunction is in the public interest. Id. However, when evaluating a petition under § 10(j), the court must analyze the request "through the prism of the underlying purpose of § 10(j), which is to protect the integrity of the collective bargaining process and to preserve the Board's remedial power while it processes the charge." Miller, 19 F.3d at 459-60.
"In assessing whether the Board has met its burden, 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." Id. at 460 (citing NLRB v. City Disposal Sys., Inc., 465 U.S. 822, 829 (1984) ("[O]n an issue that implicates [the Board's] expertise in labor relations, a reasonable construction by the Board is entitled to considerable deference[.]"); Ford Motor Co. v. NLRB, 441 U.S. 488 (1979) ("Of course, the judgment of the Board is subject to judicial review; but if its construction of the statute is reasonably defensible, it should not be rejected merely because the courts might prefer another view of the statute.").
The district court must evaluate the likelihood of success in the context that the Board's determination on the merits will be given considerable deference on appeal. Id. "A conflict in evidence does not preclude the Regional Director from making the requisite showing for a § 10(j) injunction." Scott, 241 F.3d at 662; see Seeler v. Trading Port, Inc., 517 F.2d 33, 36-37 (2d Cir. 1975) (holding that where "there are disputed issues of fact in the case, the Regional Director should be given the benefit of the doubt in a proceeding for § 10(j) relief"). Moreover, the Ninth Circuit has instructed that "[e]ven on an issue of law, the district court should be hospitable to the views of the General Counsel, however novel." Miller, 19 F.3d at 460 (quoting Danielson v. Joint Bd. of Coat, Suit & Allied Garment Workers' Union, 494 F.2d 1230, 1245 (2d Cir. 1974)). On a motion for a 10(j) injunction, it is not the duty of the district court "to resolve the factual disputes or the legal issues involved. Those are for the Board." Kennedy v. Teamsters Local, 443 F.2d 627, 630 (9th Cir. 1971). "In short, the Board 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." Miller, 19 F.3d at 460.
1. Withdrawal of Recognition
Petitioner asserts that it has demonstrated a likelihood of success on the merits because the Union had not actually lost the support of the majority of employees at the date of withdrawal. Specifically, petitioner asserts that 18 of the signatures on the anti-Union ...