Overstreet ex rel. Nat'l Labor Relations Bd. v. Gunderson Rail Servs., LLC

5 F.Supp.3d 1073

Cornele A. OVERSTREET, Regional Director of the Twenty–Eighth Region of the NATIONAL LABOR RELATIONS BOARD, for and on behalf of the National Labor Relations Board, Petitioner,

v.GUNDERSON RAIL SERVICES, LLC, d/b/a Greenbrier Rail Services, Respondent.

No. CV 14–1323–TUC–FRZ.

United States District Court, D. Arizona.

Signed March 14, 2014.

Order Clarifying Injunction April 8, 2014.

Eva C. Shih, John T. Giannopoulos, Sophia Alonso, National Labor Relations Board, Phoenix, AZ, for Petitioner.

Frederick Charles Miner, Steven Gregory Biddle, Littler Mendelson PC, Phoenix, AZ, for Respondent.

ORDER

FRANK R. ZAPATA, District Judge.

Pending before the Court is Petitioner's Petition for Temporary Injunction Under Section 10(j) [29 U.S.C. § 160(j) ] of the National Labor Relations Act (“Act” or “NLRA”).

The Respondent is Greenbrier Rail Services (“Greenbrier”) which is a unit of the Greenbrier Companies, Inc. which manufactures, repairs, and services railroad cars throughout North America and Europe; the Wheels, Repair, and Parts division repairs and maintains rail cars at approximately 30 locations in North America. One of these locations is a Tucson facility that has approximately 92 production employees which includes welders, airmen, switchmen, painters, and others. Petitioner argues that in response to these employees attempting to unionize, Greenbrier engaged in an extensive anti-union campaign that included laying off a third of its work force, closing its Tucson factory, interrogation and the impression of surveillance of employees, unlawful promises and grants of benefits, unlawful solicitation of employee complaints and grievances, and threats to employees. Petitioner argues that these actions illegally destroyed any past and future support for unionization. While the parties have engaged in administrative litigation for many months and just completed numerous evidentiary hearings as to these issues before an Administrative Law Judge in February of 2014, Petitioner emphasizes that such administrative proceedings are protracted and an enforceable order typically is not forthcoming for an extended period of time. As such, Petitioner has filed this § 10(j) action seeking a temporary injunction from the Court pending the conclusion of the litigation before the Board. For the reasons stated below, Petitioner's Petition for a Temporary Injunction is granted.

GENERAL STANDARD OF REVIEW

“Section 10(j) permits a district court to grant relief it deems just and proper ... 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 ... Thus, when a Regional Director seeks § 10(j) relief, he 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 ... [S]erious questions going to the merits' and a balance of hardships that tips sharply towards the [Regional Director] can support issuance of a preliminary injunction, so long as the [Regional Director] also shows that there is a likelihood of irreparable harm and that the injunction is in the public interest ... In all cases, however, the Regional Director must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction ... [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.” Frankl v. HTH Corp., 650 F.3d 1334, 1355 (9th Cir.2011)¹ (emphasis added).

LIKELIHOOD OF SUCCESS ON THE MERITS

“On a § 10(j) petition, likelihood of success is a function of the probability that the Board will issue an order determining that the unfair labor practices alleged by the Regional Director occurred and that this Court would grant a petition enforcing that order, if such enforcement were sought ... [I]n evaluating the likelihood of success, 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 ... It is, after all, the Board and not the courts, which has primary responsibility for declaring federal labor policy ... Additionally, and for similar reasons, even on an issue of law, the district court should be hospitable to the views of the General Counsel, however novel ... Given these considerations ... the regional director in a § 10(j) proceeding 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 ... But if the Director does not show that success is likely, and instead shows only that there are serious questions going to the merits, then he must show that the balance of hardships tilts sharply in his favor, as well as showing that there is irreparable harm and that the injunction is in the public interest” Frankl, 650 F.3d at 1355–56 (emphasis added).

§ 8(a)(3) Allegations as to the November 2012 Layoffs

On 11/12/12, Greenbrier laid off approximately a third of its work force. Petitioner argues that this violated § 8(a)(3) of the Act as it was motivated by anti-union animus.

“Section 8(a)(3) of the NLRA prohibits an employer from discriminating against employees in regard to hire or tenure of employment ... to discourage membership in any labor organization ... [I]t is well-established that an employer violates Section 8(a)(3) of the NLRA where it close[s] a part of [its] operations, discharge[s] the employees involved, and subcontract[s] the work for anti-Union purposes.” Healthcare Employees Union, Local 399, Affiliated With Service Employees Intern. Union, AFL–CIO v. N.L.R.B., 463 F.3d 909, 918 (9th Cir.2006); see also Nabors Alaska Drilling, Inc. v. N.L.R.B., 190 F.3d 1008, 1014 (9th Cir.1999) (“An employer commits an unfair labor practice in violation of § 8(a)(1) & (3) if it discharges an employee because of the employee's union activity.”).

In a Section 8(a)(3) case, the Board uses the burden-shifting scheme set forth in Wright Line to determine whether an employer was motivated by anti-union animus. See251 NLRB 1083, 1089 (1980); NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 399–403, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983) (upholding Wright Line burden shifting scheme under the NLRA). Under Wright Line, Petitioner must show that employees were engaged in union activities, Respondent knew of these activities, and harbored the requisite anti-union animus. Praxair Distribution, Inc., 357 NLRB No. 91 slip op. at 1 fn. 2 (2011), 2011 WL 4406047, *1. “Once this is established, the burden will shift to the employer to demonstrate the same action would have taken place even in the absence of the protected conduct.” Aguayo v. Quadrtech Corp., 129 F.Supp.2d 1273, 1277 (C.D.Cal.2000). An employer must not only establish a legitimate reason for its actions, but must persuade by a preponderance of the evidence, that it would have taken the same actions even in the absence of the protected activity. Peter Vitalie Co., Inc., 310 NLRB 865, 871 (1993); Healthcare Employees Union, Local 399 v. NLRB, 463 F.3d 909, 923 (9th Cir.2006). The Petitioner's overall burden of persuasion is identical to its initial burden under Wright Line. Manno Electric, Inc., 321 NLRB 278, 280 n. 12 (1996), enf'd mem., 127 F.3d 34 (5th Cir.1997).

“While the General Counsel retains the ultimate burden of persuasion, once the General Counsel establishes that anti-union animus was a motivating factor, the employer bears the burden of establishing any affirmative defense such as the inevitability of termination.” Healthcare Employees Union, Local 399, Affiliated With Service Employees Intern. Union, AFL–CIO, 463 F.3d at 919. “An employer will seldom admit that it was motivated by anti-union animus when it made its adverse employment decision ... Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving ... For that reason, circumstantial evidence is sufficient to establish anti-union motive ... Motive is a question of fact, and the NLRB may rely on both direct and circumstantial evidence to establish an employer's motive, considering such factors as the employer's knowledge of the employee's union activities, the employer's hostility toward the union, and the timing of the employer's action ... To determine motive, the Board may rely on indirect evidence and inferences reasonably drawn from the totality of the circumstances.” Id. A discriminatory motive may be shown by: (1) the timing; (2) the presence of other unfair labor practices; (3) statements and actions showing the employer's general and specific animus; (4) disparate treatment; (5) departure from past practice; (6) failing to adequately investigate whether the alleged misconduct occurred; and (7) evidence demonstrating that an employer's proffered explanation for the adverse action is a pretext. See, e.g., Golden Day Schools v. NLRB, 644 F.2d 834, 838 (9th Cir.1981); NLRB v. Rain–Ware, Inc., 732 F.2d 1349, 1354 (7th Cir.1984); Mid–Mountain Foods, Inc., 332 NLRB 251, 251 n. 2, 260 (2000); NLRB v. Vemco, Inc., 989 F.2d 1468, 1473–74 (6th Cir.1993); Affiliated Foods, Inc., 328 NLRB 1107, 1107 (1999); Naomi Knitting Plant, 328 NLRB 1279, 1283 (1999); JAMCO, 294 NLRB 896, 905 (1989), aff'd mem., 927 F.2d 614 (11th Cir.1991), cert. denied, 502 U.S. 814, 112 S.Ct. 66, 116 L.Ed.2d 41 (1991); W.W. Grainger, Inc. v. NLRB, 582 F.2d 1118, 1121 (7th Cir.1978); Wright Line, 251 NLRB at 1089; Roadway Express, 327 NLRB 25, 26 (1998). In addition, the “Board has inferred unlawful motive where...