United States District Court, C.D. California
MORI RUBIN, regional director of Region 31 of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
VISTA DEL SOL HEALTH SERVICES, INC., d/b/a VISTA DEL SOL HEALTHCARE, Respondent
For Mori Rubin, Regional Director of Region 31 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner: Brian Dean Gee, Joanna F Silverman, LEAD ATTORNEYS, National Labor Relations Board - Region 31, Los Angeles, CA; Simone Pang Gancayco, LEAD ATTORNEY, National Labor Relations Board, Los Angeles, CA.
For Vista Del Sol Health Services, Inc., doing business as Vista Del Sol Healthcare, Respondent: Yolanda Flores-Burt, LEAD ATTORNEY, Yolanda Flores-Burt Law Offices, Santa Ana, CA.
ORDER GRANTING PETITIONER'S MOTION FOR PRELIMINARY INJUNCTION
MARGARET M. MORROW, UNITED STATES DISTRICT JUDGE.
On December 12, 2014, Mori Rubin, regional director of Region 31 of the National Labor Relations Board, acting for and on behalf of the National Labor Relations Board (the " Board" ), filed a petition seeking a temporary injunction under Section 10(j) of the National Labor Relations Act (" NLRA" ), as amended 29 U.S.C. § 160(j), against Vista Del Sol Health Services, Inc. (" Vista" ). The petition seeks injunctive relief based on Vista's purported violations of § 8(a)(1), (3), and (5) of the NLRA, which prohibit unfair labor practices. Vista opposes the petition.
I. FACTUAL BACKGROUND
A. Vista Del Sol Healthcare
Vista operates a nursing facility located in Los Angeles, California. The facility is divided into a skilled nursing division that goes by the Vista name, and an assisted living division known as Casa Del Mar. Vista employed approximately 62 employees in October 2013, including Rosa Valdivia, the facility's top management official; Jeri Warner, director of nursing; Ester Cuellar, assistant director of staff development; Vida Zelaya, director of staff development; and Arcadio De Borja and Ingrid Castillo. Valdivia, Warner, and Cuellar are high ranking supervisors with authority to terminate employees.
B. The Beginning of Union Organizing
In early August 2013, the Service Employees International Union-Long Term Care Workers (" SEIU-ULTCW" or the " union" ) began organizing employees at Vista. Several organizers made house visits and conducted meetings with the employees.
Valdivia admitted that by August 8, 2013, she had " learned that there was some kind of union activity going on."  Marcos Salvador reports that, at approximately the same time, Id., " Valdivia called a meeting of employees. It took place in the hallway to the right of the nurse's station. There was Renya Artola, Kiran [Singh], Remedios Lopez, Jeanette Aguillera, and myself. Ester [Cuellar] was there also. Valdivia did the speaking. . . . She said that we needed to be careful because there were some thieves visiting houses because they had stolen some documentation from her including all the employee information. She said that they would identify themselves as from the [u]nion. She said this was not true and they were actually thieves. . . . She said that we should not open our doors because they would look at everything we had so that they could steal it."  Rosa Lopez states that Valdivia called her cellular telephone sometime after the union visited her and told her that she " should not let them in because they might be thieves." 
On October 11, 2013, union representatives Jose Manzano and Edward Gutierrez held two meetings at a McDonalds. The first took place at approximately 1:00 pm. Two Vista employees were present: Silvia Figueroa and Lerma Davis; both signed union authorization forms. A second meeting was held later in the day. Elisa Mayorga, Marcos Salvador, Rosa Lopez, Remedios Lopez, Reyna Artola, Ivania Ruedas, and Genaro Meza were present, and each signed a union authorization form. By October 14, 2013, Vista employees had obtained signatures from a majority of employees; at 3:30 or 4:00 pm that day, the union gave Valdivia a signed union petition. Figueroa, Salvador, Davis, Mayorga, Ruedas, Rosa Lopez, Remedios Lopez, Xenon Perez, Jeanette Aguilera, Aurora Maria Rodrigues, Reyna Artola, Maria Ramirez, Martha Aparicio, Rosalva Salazar were present, wearing purple Service Employees International Union scrubs. Salvador spearheaded presentation of the petition to Valdivia; speaking in Spanish, he allegedly demanded union recognition and requested that Valdivia sign the petition. Valdivia allegedly responded, also in Spanish, that she would not sign the petition and said she would contact her attorney.
C. Vista's Response to its Employees' Attempt to Unionize
1. Policy Changes
On October 14, 2013, at approximately 3:00 pm, just prior to presentation of the union petition, Valdivia stopped Maria Ramirez and asked her about the union authorization cards that were being circulated and why she had signed the union " list."  After the petition was presented, Valdivia -- who appeared " very upset and angry," told all off-duty employees to leave the facility. Petitioner contends that this was a departure from ordinary practice, as " [t]here was no problem" with employees coming to the facility on days they were not working.
Valdivia and Warner, the director of nursing, held meetings with several employees after the union petition was presented, and announced that the company would no longer tolerate employees arriving after the seven minute grace period at the start of their shift, and that employees who arrived late would be subject to discipline, including termination. The meetings apparently took place during the week of October 14, 2013; the record does not reflect the precise date. On October 15, 2013, Valdivia met with housekeeping department employees. She informed them that Vista was going to enforce a more strict dress code policy, and would prohibit the wearing of any logos. Petitioner contends this effectively prevented employees from wearing union insignia.
2. Polling and Interrogation
Petitioner contends that from October 17 to 21, 2013, Valdivia polled and interrogated employees. Specifically, petitioner asserts that Valdivia gave employees a form to sign asking them to indicate whether they had voluntarily or involuntarily signed the union petition. On October 18, 2013, Valdivia purportedly asked Meza if he knew what he had signed, if he knew what he was doing, and what the union had promised him in return. After he explained that employees wanted someone to represent them, Valdivia said that " the trust had ended" and that he had " betrayed her."  On October 20, De Borja, a charge nurse, questioned Ramirez concerning her union involvement. When Ramirez declined to comment, De Borja ordered her to answer. The next day, Valdivia asked Rosa Lopez if she had been forced to sign the union petition; she promised that Lopez would keep her job as long as she wanted it if she signed a document stating that she had been forced to sign the petition.
Petitioner alleges that on October 23, 2013, Cuellar impliedly threatened Meza by telling him that Valdivia was " well prepared" to respond to the union organizing and that the employees " should all be careful; " indeed, Cuellar purportedly went so far as to say that she " felt sorry for [the employees] because Valdivia was so well-prepared against [them]." 
In an October 9, 2014 letter to the NLRB, Vista's lawyer stated that the entire facility might be forced to close if the employees were unwilling to accept the company's settlement offers. Petitioner assert this is a threat that if Vista employees do not stop attempting to organize a union, the company will close the facility.
3. Discharge of Employees
i. Martha Aparicio and Defina Sanchez
Petitioner contends that Martha Aparicio and Delfina Sanchez were discharged in order to discourage employees from engaging in union activities. On October 6, 2013, these certified nursing assistants (" CNAs" ) were scheduled to work their usual 11:00 p.m. to 7:00 a.m. shift at Vista, together with charge nurse Jennifer Abaunza and CNA Maria Lopez. At approximately 3:50 a.m. on October 7, 2013, Abuanza told Aparicio that she could take her break. Aparicio fell asleep in the nurse's station near Sanchez and Lopez. Roughly an hour later, Abaunza said that Thomas Adelman, the son of a Vista patient, had just taken photographs of Aparicio, Sanchez, and Lopez sleeping, and told them all to wake up. Adelman, who was upset the nurses were sleeping, showed the photographs to Valdivia.
The next day, Warner called Ingrid Castillo, a charge nurse, into her office to discuss the incident because she believed that Castillo had been involved. After the meeting, Castillo told the CNAs that they needed to take turns taking naps in the future. The Vista employee handbook states that sleeping on the job is a violation that can lead to termination following the first offense. Vista contends it had never before had an issue with employees sleeping on the job. Several CNAs assert, however, that CNAs and charge nurses regularly slept during the night shift, that charge nurses knew this, and that CNAs were not disciplined for doing so. Indeed, Sanchez states that even after the October 7, 2013 incident, CNAs continued to sleep during the night shift. After the incident and after Castillo's meeting with Warner, Sanchez and Aparicio worked their regularly scheduled shifts on October 7, 8, and 11-14, 2013 without issue.
Aparicio participated in the presentation of the union petition on August 14, 2013, which included both her and Sanchez's names, but not Maria Lopez's name. On October 15, 2013, Sanchez met with Warner, who said she was obligated to terminate her because Sanchez had slept on the job. Warner stated that four people had been sleeping and that all were being fired. Aparicio met with Warner and Cuellar on October 18, 2013, and was told that she too was being terminated for sleeping. When she explained that Castillo had given her permission, as she had done for years, Warner said the orders came from Valdivia and that she had to terminate Aparicio.
Lopez was not terminated. Vista contends this is because Adelman's photographs did not show that she had been sleeping and did not otherwise implicate her in the incident; it also asserts that on the day of the incident, Lopez was scheduled to work at Casa Del Mar -- " located in another building." 
ii. The Housekeeping Department
From October 25 to 28, 2013, Vista laid off seven of the eight employees in its housekeeping department, replacing them with five individuals provided by an independent contractor, Pro-Clean. The employees had received no information that Vista was going to subcontract their work prior to their discharge. Six of the employees -- Meza, Cobar, Mayorga, Romana Lopez, Rosa Lopez, and Maria Isabel Valladares nee Menjivar -- signed the union petition; two -- Rosa Lopez and Mayorga -- were present when the union petition was served on Valdivia on October 14, 2013. The only housekeeping employee Vista retained was Ramon Lopez, who expressed anti-union sentiments. Vista asserts that it retained Lopez because Pro-Clean was providing only housekeeping services, and/or because it could not provide afternoon or weekend maintenance.
4. Wage Increases to Bargaining Unit Employees
On approximately October 10, 2013, Vista gave two employees a 50 cent an hour raise. Petitioner asserts this was done in an effort to discourage them from supporting the union. In December 2013, Vista gave all CNAs a wage increase of 50 cents an hour. This was discretionary and unscheduled;  most employees had not received a raise in at least six years, which was one of the reasons they supported the union.
5. Overt Hostility Towards Union
In January 2014, Warner, who was still director of nursing at the time, sent a series of text messages to Remedios Lopez. The messages stated:
o " [Valdivia] did get rid of house keeping & laundry because she said the CNA will need 50% vote I didn't agree with her practices so she has to fire me too." 
o " I am writing corporate to let them now that [Valdivia] was retaliating against the CNA." 
o " [Valdivia] was so mad about this union business [she] did [not] even want [to] do the employee of the month which I said should b[e] [yo]u [(Remedios Lopez)] and Marcos [Salvador]! Nope she w[a]s [too] mad." 
C. Vista's Response to Union Formation Caused Some Employees to Fear Losing Their Jobs As a Result of Supporting the Union
Several Vista employees testified that they were scared they would lose their jobs because they supported the union. On October 29, 2013, Maria Ramirez stated that " [a]s a result[ ] of [her] coworkers' termination, [she] . . . fear[ed] . . . losing [her] job because [she] supported the [u]nion."  She also stated that " [e]very day that [she] clock[s] in at the start time or time[s] out, [she] feel[s] that [ ] Valdivia will call [her] into her office and . . . fire [her]."  Ivania Rueda stated that she was " afraid to lose [her] job for . . . supporting the [u]nion."  She also reported that she overheard Maria Ramirez and Romana Lopez say they were " afraid to participate in the [u]nion after [their] coworkers were discharged and laid off." 
Elisa Mayorga testified she heard " Reyna [Artola] say that she [was] afraid she was going to lose her job just like [Mayorga and the others] did" ; she also reported hearing Remedios Lopez, Reyna [Artola], and Maria Ramirez state that they were " afraid to wear the [u]nion shirts now."  On October 30, 2013, Maria Rodriquez indicated that she had the same fears as these employees; she stated that she was " aware that employees ha[d] been fired," said she thought they had been fired " because they supported the [u]nion," and admitted that she feared she " could be next because [she] signed the [u]nion petition."  Likewise, Maria Menjivar stated that " [a]s a result of [the termination of the CNAs], [she] felt that [she] could lose her job for supporting the [u]nion and signing the petition. . . . [O]ther employees, including Rosa Lopez, [Dafny] Cobar, and Elisa Mayorga commented to [Menjivar] that they felt the same way." 
Marcos Salvador and Reyna Artola testified that they both felt they could be fired for supporting the union. In November 2013, Salvador stated: " Now that so many employees have been fired or laid-off, I feel that I could be next. I believe that they were let go because they supported the [u]nion." He also said that after the layoffs in October 2013, " employees stopped attending [u]nion meetings."  More recently, on October 3, 2014, Artola stated that " [r]ight after [Vista] fired the housekeepers, [she] was afraid that [she] would get fired too. . . . After the housekeepers were fired, employees were scared to support the [u]nion because they said they had families to support and they did not want to get fired. [She] heard the following employees say they were afraid to get fired: Marcos Salvador, Kiran [Singh], Diana Hermandez, Yolanda Hernandez, and Maria Ramirez."  She commented that CNA Omela Cuesta signed a union authorization card, " but after the housekeepers were fired, she stopped supporting the [u]nion as well." 
D. Procedural Background
As noted, the union filed a petition for an election to represent certain of Vista's employees on October 17, 2013. Between October 18 and December 9, 2013, the union filed fifteen charges against Vista, alleging violations of § 8(a)(1) and (3). Since November 15, 2013, the Union's petition to be appointed as representative for certain of Vista's employees has been blocked pending the Board's investigation of the charges.
On March 21, 2014, Vista filed a complaint seeking to enjoin the N.L.R.B. from enforcing certain investigatory subpoenas. The action was assigned to this court. On April 30, 2014, the N.L.R.B. filed an application for an order requiring compliance with two administrative subpoenas duces tecum. The case was initially assigned to Judge Stephen Wilson, but was subsequently transferred to this court. On May 12, 2014, the Board filed a motion to dismiss Vista's complaint for lack of subject matter jurisdiction. The court granted the NLRB's motion to dismiss on July 7, 2014. The same day, it granted the NLRB's application to enforce the subpoenas, except to the extent the first subpoena sought information concerning the identity of Vista's shareholders.
On September 26 and October 2, 2014, the union filed two new charges against Vista, alleging § 8(a)(1), (3), and (5) violations. On October 30, 2014, the N.L.R.B. issued an order consolidating the cases, filed a consolidated complaint, and noticed a hearing on the consolidated complaint. The union filed an additional charge against Vista on November 3, 2014, alleging another § 8(a)(1) violation. Vista answered the consolidated complaint on November 12, 2014. On December 5, 2014, the N.L.R.B. issued a second consolidated complaint. There is presently a hearing before an administrative law judge scheduled for January 20, 2015.
E. Vista's Evidentiary Objections
Vista has asserted several objections to the evidence petitioner adduced in support of the petition. The objections generally concern authentication and hearsay, although other grounds are asserted with respect to certain items of evidence. Petitioner contends that the court can consider its evidence, although possibly inadmissible, in deciding a motion for preliminary injunction. Petitioner is correct. It is well established that trial courts can consider otherwise inadmissible evidence in deciding whether or not to issue a preliminary injunction. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) ( " [A] preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits" ); Flynt Distributing Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) (" The Harveys argue that Flynt's evidence is hearsay. The urgency of obtaining a preliminary injunction necessitates a prompt determination and makes it difficult to obtain affidavits from persons who would be competent to testify at trial. The trial court may give even inadmissible evidence some weight, when to do so serves the purpose of preventing irreparable harm before trial" ). " Indeed, district courts have considerable discretion to consider otherwise inadmissible evidence when ruling on the merits of an application for a preliminary injunction." See Garcia v. Green Fleet Sys., LLC, No. CV 14-6220 PSG (JEMx), 2014 WL 5343814, *5 (C.D. Cal. Oct. 10, 2014) (citing Flynt, 734 F.2d at 1394; Republic of the Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir. 1988) (observing that the rules of evidence do not strictly apply to preliminary injunction proceedings)).
This does not mean, however, that issues concerning authentication and hearsay have no relevance at this stage of the proceedings. Such " issues properly go to weight, rather than admissibility." Id. See also Sega Enterprise Ltd. v. Accolade, Inc., 977 F.2d 1510, 1530 n. 10 (9th Cir. 1992) (" In the absence of any evidence that Nagashima was lying, it was not an abuse of discretion for the district judge to admit his declaration and the altered Accolade cartridges as evidence. The fact that neither Accolade nor the district court was able to verify Nagashima's statements affects the weight to be given the statements and the proffered cartridges, not their admissibility" ). Accordingly, the court considers Vista's objections to evidence the court relies upon infra.
A. Legal Standard Governing Motions for Preliminary Injunctions
" Section 10(j) permits a district court to grant relief 'it deems just and proper.'" 29 U.S.C. § 160(j). Frankl v. HTH Corp., 650 F.3d 1334, 1355 (9th Cir. 2011). " To decide whether granting a request for interim relief under Section 10(j) is 'just and proper,' district courts consider the traditional equitable criteria used in deciding whether to grant a preliminary injunction." McDermott v. Ampersand Publ'g, LLC, 593 F.3d 950, 957 (9th Cir. 2010).
" A preliminary injunction is an extraordinary and drastic remedy." Munaf v. Geren, 553 U.S. 674, 689, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008). Thus, a district court should enter a preliminary injunction only " upon a clear showing that the plaintiff is entitled to such relief." Winter v. NRDC, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Such a showing requires that the plaintiff establish 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." Winter, 555 U.S. at 20; see Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009) ( " Under Winter, plaintiffs seeking a preliminary injunction must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest" ); see also Johnson v. Couturier, 572 F.3d 1067, 1081 (9th Cir. 2009) ( " [P]reliminary injunctive relief is available only if plaintiffs [also] 'demonstrate that irreparable injury is likely in the absence of an injunction,'" quoting Winter, 555 U.S. at 22);  American Trucking Associations, 559 F.3d at 1052 ( " A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits," citing Winter, 555 U.S. at 20); Timbisha Shoshone Tribe v. Kennedy, 687 F.Supp.2d 1171, 1182 (E.D. Cal. 2009) ( " Pursuant to Winter, [p]laintiffs must make a 'clear showing' that they are 'likely to succeed on the merits,'" quoting Winter, 555 U.S. at 22).
Following Winter, the Ninth Circuit articulated an alternate formulation of the sliding scale test. Post- Winter, serious questions going to the merits and a balance of hardships that tips sharply in favor of the plaintiff can support issuance of a preliminary injunction if plaintiff also shows that there is a likelihood of irreparable injury and the injunction is in the public interest. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (" To the extent prior cases applying the 'serious questions' test have held that a preliminary injunction may issue where the plaintiff shows only that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor, without satisfying the other two prongs, they are superseded by Winter, which requires the plaintiff to make a showing on all four prongs. . . . But the 'serious questions' approach survives Winter when applied as part of the four-element Winter test. That is, 'serious 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 injury and that the injunction is in the public interest" ).
If the harm to plaintiff is merely monetary, it " will not usually support injunctive relief." American Trucking Associations, 559 F.3d at 1057. See also California Pharmacists Association v. Maxwell-Jolly, 563 F.3d 847, 851-52 (9th Cir. 2009) (" Typically, monetary harm does not constitute irreparable harm. . . . Economic damages are not traditionally considered irreparable because the injury can later be remedied by a damage award " (emphasis original)). In addition, harm that is " merely speculative" will not support injunctive relief, " although a loss of goodwill and reputation can do so." American Trucking Associations, 559 F.3d at 1057.
As the Winter Court noted, " [a] preliminary injunction is an extraordinary remedy never awarded as of right." Winter, 555 U.S. at 55. " In each case, a court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Amoco Production Co. v. Village of Gambell, Alaska, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). " In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982).
" The plaintiff[ ] bear[s] the initial burden of showing that [issuance of an] injunction is in the public interest." Stormans, 586 F.3d at 1139 (citing Winter, 555 U.S. at 27). The district court " need not consider public consequences that are 'highly speculative.'" Id. (quoting Golden Gate Restaurant Association v. City & County of San Francisco, 512 F.3d 1112, 1126 (9th Cir. 2008)). " In other words, the court should weigh the public interest in light of the likely consequences of the injunction. Such consequences must not be too remote, insubstantial, or speculative and must be supported by evidence." Id. " When the reach of an injunction is narrow, limited only to the parties, and has no impact on non-parties, the public interest will be 'at most a neutral factor in the analysis rather than one that favor[s] [granting or] denying the preliminary injunction.'" Stormans, 586 F.3d at 1138-39 (quoting Bernhardt v. Los Angeles County, 339 F.3d 920, 931 (9th Cir. 2003)). See also Sierra Forest Legacy, 577 F.3d at 1022 (" When deciding whether to issue a narrowly tailored injunction, district courts must assess the harms pertaining to injunctive relief in the context of that narrow injunction" ). " If, however, the impact of an injunction reaches beyond the parties, carrying with it a potential for public consequences, the public interest will be relevant to whether the district court grants the preliminary injunction." Id. at 1139 (citing Sammartano v. First Judicial District Court, 303 F.3d ...