United States District Court, S.D. California
OLIVIA GARCIA, Regional Director of Region 21 of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
FALLBROOK HOSPITAL CORPORATION d/b/a FALLBROOK HOSPITAL, Respondent
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For Olivia Garcia, Regional Director of Region 21 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Plaintiff: Robert Neal Mackay, LEAD ATTORNEY, National Labor Relations Board, San Diego, CA.
For Fallbrook Hospital Corporation, doing business as Fallbrook Hospital, Defendant: Robert Laurence Rosenthal, LEAD ATTORNEY, Howard & Howard PLLC, Las Vegas, NV.
HON. GONZALO P. CURIEL, United States District Judge.
ORDER GRANTING PETITIONER'S MOTION FOR TEMPORARY INJUNCTION PURSUANT TO SECTION 10(j) OF THE NATIONAL LABOR RELATIONS ACT [Dkt. No. 2.]
On May 16, 2013, Petitioner Olivia Garcia, Regional Director of Region 21 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board filed a petition for temporary injunction under section 10(j) of the National Labor Relations Act (" Act" ) along with a motion for temporary injunction. (Dkt. Nos. 1, 2.) On May 24, 2013, Respondent Fallbrook Hospital Corporation filed an opposition. (Dkt. No. 12.) Petitioner filed a reply on May 29, 2013. (Dkt. No. 14.) On June 5, 2013, the Court held a hearing. (Dkt. No. 16.) Robert Mackay, Esq. appeared on behalf of Petitioner and Robert Rosenthal, Esq. appeared on behalf of Respondent. Based on the briefs, supporting documentation, and applicable law, the Court GRANTS Petitioner's motion for temporary injunction pursuant to Section 10(j) of the National Labor Relations Act (" Act" ).
Respondent operates an acute care hospital in Fallbrook, California. On May 24, 2012, the National Labor Relations Board (" NLRB" or " Board" ) issued a Certification of Representation in favor of the California Nurses Association/National Nurses Organizing Committee (" CNA/NNOC" ), AFL-CIO, (" Union" ) to be representative of the collective bargaining unit of registered nurses employed at Fallbrook Hospital. (Resp't Opp., Ex. A.)
On September 26, 2012, the Union filed an unfair labor practices Charge against Respondent in Case No. 21-CA-090211, which was first amended on November 8, and again amended on December 14, 2012. (Dkt. No. 12-6, Rosenthal Decl., Ex. E.) The second amended Charge alleges that Fallbrook violated sections 8(a)(1) and 8(a)(5) of the Act by engaging in conditional bargaining during collective-bargaining-agreement negotiations; refusing to meet and bargain with Union representatives regarding Respondent's decision to terminate two unit employees; and refusing to provide the Union with relevant, requested information in connection with the termination. On January 9, 2013, the Union filed an unfair labor practices Charge against Respondent in Case No. 21-CA-096065, alleging violations of sections 8(a)(1) and 8(a)(5) of the Act by refusing to bargain unless the Union discontinued use of the Assignment Despite Objection (" ADO" ) forms. (Id.) On March 6, 2013, following its investigation of the Charges, Region 21 of the NLRB issued Complaints in both matters which were consolidated and noticed for a hearing before the administrative law judge (" ALJ" ). On April 8-10, 2013, a hearing was held before an ALJ of the Board in San Diego. (Dkt. Nos. 2-3 to 2-12, M. For Temp. Inj., Exs. 4-6.) On May 1, Fallbrook submitted a post-hearing brief. (Dkt. No. 12-8, Rosenthal Decl., Ex. G.) On May 16, 2013, Petitioner filed the petition and motion for injunction. (Dkt. Nos. 1, 2.) On the same day, the ALJ issued a decision concluding that Fallbrook violated the Act as alleged by the Consolidated Complaint. (Id., Ex. C.)
Section 10(j) of the Act provides:
The Board shall have power, upon issuance of a complaint as provided in subsection (b) of this section charging that
any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon 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). " The purpose of a § 10(j) injunction is 'to protect the integrity of the collective bargaining process and to preserve the Board's remedial power while it processes' an unfair labor practice complaint."
Frankl v. HTH Corp., 650 F.3d 1334, 1341 (9th Cir. 2011) (quoting Miller v. Cal. P. Med. Ctr., 19 F.3d 449, 459-60 (9th Cir. 1994) (en banc)).
In order to obtain a § 10(j) injunction, Petitioner " must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Id. at 1355 (citing Winter v. Nat. Res. Def. Council, 555 U.S. 7, 21, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). " '[S]erious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable harm and that the injunction is in the public interest."
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). Petitioner " must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction." Id. at 1131 (emphasis in original);
see Small v. Operative Plasterers' and Cement Masons' Int'l Ass'n, Local 200, 611 F.3d 483, 491 (9th Cir. 2010) (observing that Winter abrogated Miller's holding that a mere " possibility of irreparable harm" can be adequate);
McDermott v. Ambersand Pub., LLC, 593 F.3d 950, 957 (9th Cir. 2010) (same). " [T]he court must evaluate the traditional equitable criteria through the prism of the underlying purpose of section 10(j), which is to protect the integrity of the collective bargaining process and to preserve the Board's remedial power." Id. (citation omitted).
Once a complaint is filed with the Board, an ALJ holds a hearing on the complaint and prepares a decision containing findings of fact, conclusions of law, and recommendations as to the disposition of the case. 29 C.F.R. § § 102.35, 102.45. The ALJ's decision, however, is not final. See 29 C.F.R. § 102.45. Only the Board, after either adopting or rejecting the ALJ's decision, can provide relief. 29 C.F.R. § 102.48. Further, anyone aggrieved by the Board's final order can obtain review of the order in a United States court of appeals. 29 U.S.C. § 160(f). During this process to reach the Board's decision, in order to preserve the lawful status quo that existed before an employer's unfair labor practices, Congress accorded the Board authority to seek a temporary injunction pursuant to section 10(j).
The current unique procedural posture of this case seeks an injunction after an ALJ has made a decision and prior to a decision on the merits by the NLRB.
See Norelli v. SFO Good-Nite Inn, No. C06-7335 MJJ, 2007 WL 662477, at *2 (N.D Cal. Mar. 1, 2007) (noting that procedural posture in the case differs from many other injunction cases as instead of asking for an injunction as a precursor to the ALJ's decision, Petitioner seeks an injunction as a precursor to a decision on the merits by the NLRB). While the Ninth Circuit has
not formally determined how much weight to give an ALJ's decision in a 10(j) proceeding,  district courts in this circuit have considered this issue.
In its review, the court may not only consider the underlying charge and supporting evidence, but may also consider relevant findings and legal determinations of the ALJ.
Norelli, 2007 WL 662477, at *6; see also Ahearn v. Remington Lodging and Hospitality, 842 F.Supp.2d 1186, 1196 (D. Alaska Feb. 2, 2012) (ALJ's decision is not dispositive but ALJ's factual and legal determination supply a useful benchmark). The district court does not sit in review of an ALJ's decision but should consider the ALJ's findings relevant in its determination.
Norelli, 2007 WL 662477, at *6. " Assessing the likelihood of success calls for a predictive judgment about what the Board is likely to do with the case. . . . Since the ALJ is the Board's first-level decision-maker and has presided over the merits hearing, the ALJ's factual and legal determinations supply a useful benchmark against which the Regional Director's prospects of success may be weighed." Id. (citing Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 288 (7th Cir. 2001));
Silverman v. J .R.L. Food Corp., 196 F.3d 334, 337-38 (2d Cir. 1999) (per curiam);
Rivera-Vega v. ConAgra, Inc., 70 F.3d 153, 161 (1st Cir. 1995); Seeler v. Trading Port, Inc., 517 F.2d 33, 37 n. 7 & 40 n. 11 (2d Cir. 1975);
see also Willms v. The Guard Publishing Co., 2001 WL 34038572 at *2 (D. Or. 2001) (stating " the decision by the ALJ adds considerable weight to the probability of the Regional Director's success on the merits." )).
A. Likelihood of Success on the Merits
Petitioner alleges that there is a strong likelihood that she will establish that Respondent violated sections 8(a)(1) and 8(a)(5) of the Act in the administrative proceedings. Specifically, Petitioner contends that Respondent violated the Act by failing and refusing to bargain with the Union in good faith by engaging in conditional bargaining; failing and refusing to bargain with the Union over the termination of two employees; failing to furnish relevant information to the Union; and failing and refusing to bargain as to ADO forms. Respondent disagrees.
Section 8(a)(1) provides that it " shall be an unfair labor practice for an employer (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title." 29 U.S.C. § 158(a)(1). Section 8(a)(5) states that it " shall be an unfair labor practice for an employer (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title." 29 U.S.C. § 158(a)(5). Section 159(a) provides that parties are to confer in good faith with " respect to wages, hours of employment, or other conditions of employment." 29 U.S.C. § 159(a).
1. Conditional Bargaining
Petitioner alleges that Respondent has failed and refused to bargain in good faith with the Union by engaging in conditional bargaining by refusing to submit proposals and/or counter-proposals until it received all the Union's proposals. Respondent confirms this allegation but contends that after the Union provided all of
its proposals, the Hospital presented the Union with fourteen new proposals at the end of November 2012. Therefore, Respondent argues that since the Hospital complied by providing their proposals, the relief Petitioner seeks is now moot.
Shortly after certification, on June 13, 2012, the Union and the Hospital had an introductory meeting.  The Union provided the Hospital with a preliminary information request and the parties discussed dates for bargaining. On June 25, 2012, the Union received some of the information it requested from the Hospital.
On July 3, 2012, the first bargaining session took place. The meeting began with information requests. The Union presented its initial written proposals, which totaled more than 30. Don Carmody, the Hospital attorney, stated that the Hospital would not give any proposals until the Union provided all their proposals. The Union representative replied that was bad-faith bargaining. Carmody stated that he had negotiated in this manner for 30 years.
On July 17, 2012, at the second bargaining session, Carmody started out stating that he expected all of the Union's proposals before the Hospital would offer any proposals or counter-proposals. At the meeting, the Union submitted three additional proposals, leaving only its wage proposal left to submit. The Hospital did not submit any proposals or counter proposals. On July 25, 2012, another session was held and Carmody again stated that the Hospital would not submit proposals until the Union submitted all of theirs. On August 2, 2012, the fourth bargaining session, the Hospital did not submit any new proposals or counter-proposals at the meeting. On August 22, 2012, the Union indicated that it expected some proposals from the Hospital but Carmody said the Hospital expected all of the Union's proposals before it would respond. No proposals or counter proposals were submitted at the meeting.
On September 12, 2012, the parties met again. After a caucus, Carmody returned and said they were done for the day and he would send an email explaining why they were leaving. No subsequent email was sent by Carmody to explain what happened.
On October 11, 2012, at the seventh bargaining session, Rebecca Ojala, who was selected as the clinical informaticist was present as usual in her role as a member of the bargaining team. Carmody came in and without sitting down, said he would not bargain because the Union had a member of management present. The meeting lasted about three minutes. The Union subsequently emailed the last wage proposal to Carmody.
On October 18, 2012, a meeting was held with a mediator present. On November 20, 2012, the Hospital submitted 14 proposals. On November 30, 2012, the Hospital offered a proposal regarding leaves of absences and the Union submitted 10 counter-proposals.
Based on these facts, the ALJ found that Respondent's conduct of steadfastly refusing over seven bargaining sessions to submit any proposals or counter-proposals violated sections ...