Baudler v. OS Transport LLC et al, No. 5:2011cv01943 - Document 26 (N.D. Cal. 2011)
Court Description: ORDER GRANTING PETITION FOR INJUNCTION. Signed by Judge Jeremy Fogel on May 17, 2011. (jflc3, COURT STAFF) (Filed on 5/17/2011)
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Baudler v. OS Transport LLC et al Doc. 26 1 2 **E-Filed 5/17/2011** 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 SAN JOSE DIVISION 8 9 10 WILLIAM A. BAUDLER, Regional Director of the Thirty-Second Region of the National Labor Relations Board, for and on behlaf of the National Labor Relations Board, ORDER1 GRANTING PETITION FOR INJUNCTION Petitioner, 11 v. 12 13 Case Number 05:11-cv-01943 JF/HRL OS TRANSPORT LLC and HCA MANAGMENT, INC., 14 Defendants. 15 16 17 Pursuant to section 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j), 18 Petitioner William A. Baudler, Regional Director of the Thirty-Second Region of the National 19 Labor Relations Board (“the Board”), seeks to enjoin OS Transport LLC and HCA Management 20 (collectively, Respondents) from engaging in certain alleged unfair labor practices pending final 21 disposition of a complaint currently before the Board. For the reasons discussed below, the 22 Court concludes that Petitioner has shown a likelihood of success on the merits and of 23 irreparable injury to the integrity of the collective bargaining process and the Board’s ability to 24 preserve its remedial powers, and that the balance of the equities and the public interest tip 25 decidedly in favor of granting an injunction. Accordingly, the instant petition will be granted. 26 27 28 1 This disposition is not designated for publication and may not be cited. Case No. 05:11-cv-001943 JF/HRL ORDER GRANTING PETITION FOR INJUNCTION (JFLC3) Dockets.Justia.com 1 I. BACKGROUND 2 Respondents are engaged in the business of hauling waste and recycling materials 3 between various landfills and recycling plants in and around San Jose. OS Transport is owned 4 by Hilda Andrade and her two minor children Oscar Sencion Jr. and Crystal Sencion. Andrade 5 also is the sole owner and only employee of HCA Management. The hauling operations of both 6 companies are held out to Respondents’ customers as a single integrated business operation.2 7 EX 271-278 (testimony of Don Dean). Oscar Sencion Sr. is Respondents’ yard manager and 8 oversees the day-to-day hauling, including route assignments performed by OS Transport’s 9 drivers. 10 In January 2010, Andrade and Sencion Sr. announced to OS Transport drivers and 11 mechanics that the business was being sold to new investors and would have to be restructured. 12 EX 31-32 (testimony of Jesus Garcia Marquez); EX 128-29 (testimony of Miguel Angel 13 Reynoso); EX 246 (testimony of Jose P. Guzman Marquez); EX 328-239 (testimony Marcial 14 Barron Salazar); EX 353 (testimony of Alberto Pizano Martinez). The employees were told that 15 the new investors required the drivers to incorporate as individual corporate entities in order to 16 continue working; the drivers were not told that the “new investors” were Andrade and her 17 children. At a second meeting, held on April 30, 2011, Andrade presented the employees with 18 applications for incorporation written in English and filled out by her attorney. EX 31-32 19 (testimony of Jesus Garcia Marquez); EX 128-29 (testimony of Miguel Angel Reynoso); EX 353 20 (testimony of Alberto Pizano Martinez). Most of the employees signed the documents even 21 though several of them could not read or write English and many allegedly did not understand 22 the implications of incorporation. One employee who refused to sign, Julio Escobar, 23 immediately was required to sign a resignation letter. EX 360 (testimony of Alberto Pizano 24 Martinez); EX 483 (testimony of Hilda Cachus Andrade). At the same meeting, Andrade, 25 translating her attorney’s statements into Spanish, announced that if employees were thinking 26 27 28 2 Following the convention of the parties the Court will refer to the official transcript of the administrative proceeding, the exhibits in that proceeding, and references to the Board’s affidavits as “EX,” followed by the relevant page number. 2 Case No. 05:11-cv-001943 JF/HRL ORDER GRANTING PETITION FOR INJUNCTION (JFLC3) 1 about getting help from a union, they could do so only through their corporations. EX 31-32 2 (testimony of Jesus Garcia Marquez); EX 328-239 (testimony Marcial Barron Salazar); EX 353 3 (testimony of Alberto Pizano Martinez) EX 483 (testimony of Hilda Cachus Andrade). 4 In early April, 2010, two drivers contacted Teamsters Local Union No. 350, International 5 Brotherhood of Teamsters, Change to Win, (the “Union”) for assistance with their forced 6 incorporation. The Union began organizing, and on April 14, 2010, it filed a petition to 7 represent Respondent’s drivers. EX 38-44 (testimony of Jesus Garcia Marquez); EX 234-236 8 (testimony Marcial Barron Salazar). On May 4, 2010, Union supporters signed a joint letter of 9 protest with respect to their working conditions and the fact that they had been forced to sign 10 papers that they could not understand. EX 828 (letter). 11 Miguel Reynoso testified that in a meeting on May 6, 2010, Sencion Sr. told him that all 12 of the employees who had signed the joint letter would be fired and replaced by new drivers and 13 that drivers who had not signed the letter would go on working. See EX 138-39. According to 14 Reynoso, Sencion Sr. also said that if Reynoso renounced the union he could return to a lucrative 15 route. Id. Rick Lopez, the manager of GreenWaste Recovery, a client of Respondent, testified 16 that he hired former OS Transport driver Serafin Urias in early May 2010. EX 287. Shortly 17 after hiring Urias, Lopez received a call from Sencion Sr. in which Sencion Sr. said that he was 18 having problems with the Union and that he believed the Union was paying Urias to infiltrate 19 GreenWaste. Id. Sencion Sr. also told Lopez that he was planning to hire more workers so that 20 he could get rid of his “problematic employees.” Id. 21 At or about the same time, Sencion Sr. reassigned Reynoso, Alberto Pizano, and Efrain 22 Gutierrez Najera–all of whom had signed the protest letter and supported the Union–from 23 lucrative routes to less desirable ones. EX 138, 144-49, 170-74 (testimony of Miguel Angel 24 Reynoso); EX 348-50, 392-400 (testimony of Alberto Pizano Martinez). Other Union supporters 25 also were reassigned from their previous routes, resulting in fewer loads for which they could be 26 paid. Respondent also allegedly began sending Union supporters home early, even when there 27 was still material to haul, and stopped assigning Saturday work to Union supporters, particularly 28 those perceived as leaders. 3 Case No. 05:11-cv-001943 JF/HRL ORDER GRANTING PETITION FOR INJUNCTION (JFLC3) 1 On or about August 29, 2010, Jesus Garcia Marquez submitted a written request for time 2 off from September 6 though September 20 for the birth of his child, which Andrade approved. 3 One week into Marquez’s approved leave, Andrade cancelled Marquez’s company cell phone. 4 When Marquez returned to work on September 20, he was told that his truck was under repair 5 and that he had the option of driving a spare truck or waiting for his assigned truck, which would 6 not be repaired for approximately a week. Marquez opted to request an additional week of leave. 7 He was told that he would be contacted through a co-worker, Alberto Pizano, when the repairs 8 were completed. Although Pizano checked in regularly, he was told that Marquez’s truck was 9 not ready. On September 30, Marquez was told in person that is truck was unavailable. He 10 asked to drive the spare truck but was told that it too needed repairs. Again, he was told that he 11 would be contacted when the repairs were complete. On October 15, Marquez received a letter 12 from Andrade stating that he had been terminated for abandoning his job. EX 54-69, 98-109 13 (testimony of Jesus Garcia Marquez); EX 387-388 (testimony of Alberto Pizano Martinez); EX 14 487-491 (testimony of Hilda Cachus Andrade). 15 On or about November 4, 2010, Andrade received a DMV pull notice showing a 16 speeding ticket for Alberto Pizano. Upon contacting her insurance broker, Andrade learned that 17 Pizano was ineligible for insurance coverage unless proof of non-fault was submitted with 18 respect to an April 25, 2009, accident appearing on Pizano’s driving record. EX 503-506 19 Pizano testified that in May 2009, he gave Andrade a copy of the CHP report with respect to the 20 accident, which clearly states that Pizano was not at fault. EX 379-386; EX 852-862 (exhibits). 21 Pizano also provided Andrade with his own statement about the accident. Id. Despite these 22 communications, Andrade made no effort to retain insurance coverage for Pizano. The insurance 23 broker testified that Andrade asked her expressly to make no reference to the fact that Pizano 24 still could be eligible for coverage if proof of non-fault for the April 2009 accident were 25 submitted, as Andrade did not want to give Pizano the opportunity to provide proof. EX 503- 26 506 (testimony of Cristina Bettencourt); EX 863-869 (exhibits). When the broker told Andrade 27 that she could not comply with the request, Andrade responded that “she didn’t want to employ 28 [Pizano] anymore and didn’t want to give him any opportunity to provide the proof.” EX 509. 4 Case No. 05:11-cv-001943 JF/HRL ORDER GRANTING PETITION FOR INJUNCTION (JFLC3) 1 The same day, Andrade presented Pizano with a termination letter and advised him that he no 2 longer could be employed because Respondents’ insurance company no longer would insure 3 him. When Pizano told Andrade that she must be mistaken, Andrade told him that it was not her 4 problem and that she could not help him. EX 375-379. 5 II. LEGAL STANDARD 6 Section 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j), provides 7 The Board shall have power, upon issuance of a complaint as provided in subsection (b) 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 orders as it deems just and proper. 8 9 10 11 12 “To decide whether granting a request for interim relief under Section 10(j) is ‘just and proper,’ 13 district courts consider the traditional equitable criteria used in deciding whether to grant a 14 preliminary injunction.” McDermott v. Ampersand Publishing, LLC, 593 F.3d 950, 957 (9th Cir. 15 2010). However, “when evaluating a petition under § 10(j), the court must analyze the request 16 ‘through the prism of the underlying purpose of § 10(j), which is to protect the integrity of the 17 collective bargaining process and to preserve the Board’s remedial power while it processes the 18 charge.’” Garcia v. Sacramento Coca-Cola Bottling Co., 733 F. Supp. 2d 1201, 1207-08 (E.D. 19 Cal. 2010) (quoting Miller v. Cal. Pac. Medical Ctr., 19 F.3d 449 (9th Cir. 1994)); see also 20 McDermott, 593 F.3d at 957. 21 A preliminary injunction is “an extraordinary remedy that may only be awarded upon a 22 clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, 23 Inc., 129 S.Ct. 365, 376 (2008). “The proper legal standard for preliminary injunctive relief 24 requires a party to demonstrate [1] ‘that he is likely to succeed on the merits, [2] that he is likely 25 to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips 26 in his favor, and [4] that an injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 27 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter, 129 S. Ct. at 374). The Ninth Circuit recently 28 reaffirmed that within this framework a preliminary injunction also is appropriate when a 5 Case No. 05:11-cv-001943 JF/HRL ORDER GRANTING PETITION FOR INJUNCTION (JFLC3) 1 plaintiff demonstrates “that serious questions going to the merits were raised and the balance of 2 the hardships tips sharply in the plaintiff’s favor,” thereby allowing district courts to preserve the 3 status quo where difficult legal questions require more deliberate investigation. Alliance for the 4 Wild Rockies v. Cottrell, 613 F.3d 960 (2010). 5 6 7 III. DISCUSSION A. Likelihood of Success on the Merits In order to establish a likelihood of success on the merits, Petitioner must show that the 8 Board likely will find, and the Ninth Circuit likely will affirm, a finding that Respondents 9 committed the alleged unfair labor practices. See McDermott, 593 F.3d at 964. Petitioner 10 contends that in light of “the district court’s lack of jurisdiction over unfair labor practices, and 11 the deference accorded to [the Board’s] determinations by the courts of appeals,” Miller, 19 F.3d 12 at 460, only a showing of “some evidence” together with “an arguable legal theory,” is 13 necessary to show a likelihood of success on the merits. Scott v. Stephen Dunn & Assocs., 241 14 F.3d 652, 662 (9th Cir. 2001) (quoting Miller, 19 F.3d at 460). However, the Ninth Circuit since 15 has expressed skepticism of the deferential standard articulated in Miller in light of the Supreme 16 Court’s holding in Winter v Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). See 17 McDermott, 593 F.3d at 597, 963 (indicating that the lower court in that case “may have been 18 guided by the ‘too lenient’ preliminary injunction standards” of pre-Winter cases); Small v. 19 Operative Plasterers’ & Cement Mason’s Int’l, 611 F.3d 483, 491 (9th Cir. 2010) (stating that 20 “the Supreme Court rejected Miller’s deferential standard for granting preliminary injunctions”); 21 but see Garcia, 733 F. Supp 2d at 1208 fn. 3 (concluding that McDermott overruled only 22 Miller’s analysis of irreparable injury and that Small addressed Miller’s likelihood of success 23 prong only in dicta). In this case, however, the Court concludes that Petitioner’s showing is 24 sufficient to satisfy either standard. 25 Petitioner alleges that Respondent has engaged in multiple unfair trade practices in 26 violation of §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act. Section 7 of the Act 27 gives employees the right to engage in concerted activity for the purpose of mutual aid and 28 protection, which includes both the concerted presentation to management of complaints about 6 Case No. 05:11-cv-001943 JF/HRL ORDER GRANTING PETITION FOR INJUNCTION (JFLC3) 1 working conditions, and the right to engage in union activity. Section 8(a)(1) provides that “[i]t 2 shall be an unfair labor practice for an employer . . . to interfere with, restrain, or coerce 3 employees in the exercise of the rights guaranteed in [Section 7].” Petitioner presents evidence 4 that Respondents violated this provision by making threats of termination and plant closure, 5 threats to reduce employee work and pay, and promises to restore benefits only if employees 6 abandon their union or other protected activities. Petitioner also contends that Respondent 7 violated this provision by indicating that it would be futile for employees to obtain union 8 representation because the employees were in fact independent corporations. 9 Section 8(a)(3) makes it an unfair trade practice to engage in discriminatory conduct 10 towards employees as a result of their support for a union. Petitioner offers evidence that 11 Respondents reassigned Union supporters to less lucrative routes, eliminated their opportunities 12 for additional work, and caused them to suffer extended periods without work by delaying 13 repairs to their vehicles and denying them access to spare trucks. Petitioner also alleges that 14 Respondents terminated two employees for their union activities. 15 1. Intimidation 16 Economic threats to discourage employees from unionizing violates § 8(a)(1) of the 17 NLRA, NLRB v. Grimm, 157 L.R.R.M. 2064 (9th Cir. 1996), as does misinforming employees 18 that it would be futile to select a union as their bargaining representative because they are 19 independent contractors rather than employees, Careful Courier Servs., 344 N.L.R.B. 485 20 (2005). Petitioner has presented evidence from the hearing before the administrative law judge 21 indicating that Andrade and her attorney told employees that they would have to form their own 22 corporations in order to continue working and that they could unionize only their own 23 corporations. EX 483. In addition, Reynoso testified that Sencion Sr. told him that all of the 24 employees who had signed the joint letter protesting their work conditions would be fired and 25 replaced by new drivers, and that the drivers who had not signed the letter would go on working. 26 EX 138-39. Reynoso also testified that Sencion Sr. told him that if he renounced the Union he 27 could return to a lucrative route. Id. The seriousness of this threat is confirmed by Sencion Sr.’s 28 comments to his client, Rick Lopez, that he intended to get rid of his “problematic employees.” 7 Case No. 05:11-cv-001943 JF/HRL ORDER GRANTING PETITION FOR INJUNCTION (JFLC3) 1 2 EX 287. In their opposition papers, Respondents contend that Andrade’s comments that drivers 3 could form a union in their own corporations did not convey the message that Respondent would 4 not recognize and bargain with a union or imply that bargaining would be futile. However, in 5 light of the fact that several drivers testified to their lack of understanding of the incorporation 6 process and Respondents dominant role in that process, including the forced resignation of Julio 7 Escobar, the Board reasonably could conclude that Andrade’s comments were meant to indicate 8 that it would be futile to unionize once the employees were individually incorporated. 9 Moreover, Respondents do not contest the testimony of Reynoso, which describes Sencion Sr.’s 10 threats of economic reprisal for union activity and offer of incentives for abandoning the union. 11 2. Changes in Union Supporters Work and Hours 12 Petitioner contends that there is substantial evidence that immediately upon learning the 13 identity of employees who supported the Union, Respondents reassigned those individuals to 14 less lucrative, more onerous routes, eliminated much of their Saturday work, and sent them home 15 early even when there was still material to haul. Respondents claim that of the ten employees 16 whose routes allegedly were changed, only five earned substantially less once absences outside 17 of Respondents’ control are taken into account. They also argue that evidence was presented 18 indicating that drivers’ routes were dictated by the materials that needed to be transported rather 19 than by Respondents, and that the drivers determined their Saturday work themselves. 20 The evidence presented at the hearing provides substantial support for Petitioner’s 21 claims. Respondents’ payroll records show a significant contrast between the amount of 22 Saturday work given to Union supporters before and after they signed the protest letter, while 23 drivers not known to be supporters experienced no change in their pattern of Saturday 24 assignments, and new employees hired after the protest letter worked virtually every Saturday 25 for the rest of the year. Likewise, Respondents’ records indicate that while the drivers taken off 26 of lucrative routes occasionally returned to those routes, they did those on a much less frequent 27 basis. These changes are consistent with the threats that Sencion Sr. allegedly made to Reynoso 28 and the comments he allegedly made to Lopez. While it is possible that the Board will be 8 Case No. 05:11-cv-001943 JF/HRL ORDER GRANTING PETITION FOR INJUNCTION (JFLC3) 1 persuaded by Respondents’ alternative explanations, the Court concludes that Petitioner has 2 satisfied his burden of showing that he is likely to succeed on the merits. 3 2. 4 In order to support a finding that an employer was motivated by an anti-union animus in 5 terminating an employee, Petitioner must “make a prima facie showing sufficient to support the 6 inference that protected conduct was the ‘motivating factor’ in the employer’s decision. Once 7 this is established, the burden will shift to the employer to demonstrated the same action would 8 have taken place even in the absence of protected conduct.” Healthcare Employees Union, 9 Local 399 v. N.L.R.B., 441 F.3d 670, 680 (9th Cir. 2006) (quoting Wright Line, 251 NLRB 1083, 10 Termination of Jesus Garcia Marquez 1089 (1980)). 11 Petitioner contends that record evidence, including the testimony of Marquez and his co- 12 worker Pizano, shows that Respondents seized upon Marquez’s alleged abandonment of his job 13 to remove a leading union activist away from the work place. Petitioner also points out that the 14 weight of the evidence, including the comments by Sencion Sr. to Lopez and Reynoso, support 15 the allegation that Marquez’s so-called abandonment was a pretext. Respondents argue that 16 because the union activities at issue occurred in May and Marquez was terminated in October, 17 there is no nexus between Marquez’s previous activities and the decision to terminate. 18 Respondents also claim that they were under no obligation to make efforts to contact Marquez 19 after he failed to return to work, and that after October 1, 2010, Marquez admittedly made no 20 effort to inquire about his return. Respondents point out that failing to report to work without 21 calling in unquestionably is legitimate grounds for termination under Board precedent. See 22 Engineered Comfort Systems, Inc., 346 NLRB 661 (2006). 23 Unlike the situation in Engineered Comfort Systems, Inc., in which an employer directed 24 a union activist to report to a particular job-site and the employee subsequently left on a week’s 25 vacation leaving only a voice-mail message, there is no evidence in the present record that 26 Marquez refused to report to work when asked, and there is evidence that in fact Marquez made 27 arrangements to return to work as soon as his truck (or a spare truck) was available. In addition, 28 Respondents’ cancellation of Marquez’s cell phone during his approved absence indicates that 9 Case No. 05:11-cv-001943 JF/HRL ORDER GRANTING PETITION FOR INJUNCTION (JFLC3) 1 they not only made no attempt to contact Marquez prior to termination but also made such 2 contact more difficult. These actions, combined with Sencion Sr.’s alleged comments with 3 respect to retaliation, are sufficient evidence to support a conclusion by the Board that the 4 termination of Marquez was an unfair trade practice. 5 3. Termination of Alberto Pizano 6 Respondents contend that they had legitimate grounds for terminating Pizano, and that 7 there is little evidence to support Petitioner’s claim that they were motivated to terminate Pizano 8 in November for signing a letter in May. In addition, Respondents claim that they did not have 9 proof that Pizano was not at fault for his accident, and that they provided him with the contact 10 information of the insurance broker so that he could contact the broker directly. Finally, 11 Respondents admit that they did not want Pizano to return to work once he was declared 12 uninsurable, but that they were motivated by Pizano’s poor driving record rather than his union 13 activity. Respondents note that “[t]he fact that Respondents may have been glad to be presented 14 with an opportunity to discharge [a pro-union employee] is legally inconsequential.” Shen Auto. 15 Dealer Group, 321 NLRB 586 (1996). 16 As Petitioner points out, Respondents fail to address Pizano’s uncontroverted testimony 17 that Andrade had the CHP report finding non-fault in Pizano’s personnel file and that Andrade 18 attempted to have the insurance broker remove from the exclusion letter any reference to the fact 19 that Pizano could still be eligible for coverage if proof of non-fault for the April 2009 accident 20 were submitted. This evidence, along with Sencion Sr.’s the comments described above, are 21 sufficient to establish a prima facie case of retaliation and to support a finding that Respondents 22 are unlikely to sustain their burden of proving that Pizano would have been terminated absent his 23 Union activities. 24 B. Irreparable Harm 25 Petitioner also must establish a likelihood of irreparable harm in the absence of 26 preliminary relief. McDermott, 593 F.3d 957 (holding that the previous precedents indicating 27 that “when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary 28 injunction may be entered based only on a ‘possibility’ of irreparable harm” were now 10 Case No. 05:11-cv-001943 JF/HRL ORDER GRANTING PETITION FOR INJUNCTION (JFLC3) 1 “defunct”). In evaluating the likelihood of irreparable harm, courts must “take into account the 2 probability that declining to issue the injunction will permit the allegedly unfair labor practice to 3 reach fruition and thereby render meaningless the Board’s remedial authority.” Miller, 19 F.3d 4 at 460. 5 Petitioner contends that the interim relief he requests, particularly the reinstatement of 6 terminated employees and a cease and desist order, is necessary to prevent irreparable injury to 7 employees’ statutory rights and to protect the Union’s nascent organizing campaign. Petitioner 8 claims that Respondents’ acts of retaliation against Union supporters, including termination and 9 unfavorable assignments, threaten to chill the exercise of statutory rights by employees. 10 Petitioner assers that this chilling effect is likely to erode support for the Union before the Board 11 issues its decision. EX 538-39 (affidavit of union organizer). Petitioner also claims that 12 Respondents’ actions raise concerns that the terminated employees and others afraid of reprisal 13 may look for new jobs, EX 540, thus undermining the Board’s ability to provide a complete 14 remedy. 15 Respondents argue that Petitioner has failed to show a likelihood of irreparable harm to 16 the Union’s organizing efforts. They claim that no testimony was elicited from any of the 17 drivers who testified at the hearing that they were less likely to support the union because they 18 were fearful for their jobs. While one driver who had supported the Union later disavowed his 19 support and asked forgiveness from Respondents, Respondents point out that the driver did not 20 testify that his disavowal had anything to do with Respondents’ actions. They contend that the 21 only evidence of irreparable harm is hearsay contained in the affidavit of the Union’s organizer. 22 Respondents also observe that the Union was able to reaffirm the support of nine of its 23 ten remaining supporters through signatures on authorization cards obtained after the 24 terminations and that claims that Marquez must be reinstated immediately because he is a lead 25 organizer are belied by the fact that the Union has used other drivers as organizers. Finally, 26 Respondents argue that Petitioner’s delay in seeking injunctive relief demonstrates the absence 27 of irreparable harm. They note that although the Union’s initial charges were filed by the Union 28 in May 2010 and the charges alleging the unlawful termination of Marquez and Pizano were 11 Case No. 05:11-cv-001943 JF/HRL ORDER GRANTING PETITION FOR INJUNCTION (JFLC3) 1 filed in November 2010, Petitioner did not seek injunctive relief until April 2011. 2 Petitioner points out that an expedited unfair labor practice proceeding before an 3 administrative law judge occurred at the end of February and beginning of March, and that the 4 present petition was filed as soon as possible after the record of that proceeding could be 5 reviewed. Petitioner has made a substantial showing that Respondents engaged in serious unfair 6 labor practices, including the termination of a lead organizer and another Union supporter, 7 retaliation against Union efforts in the form of unfavorable assignments, threats to Union 8 supporters, and promises of improved treatment of employees who disavow the Union. These 9 actions appear calculated to chill the employees’ rights to the point that the organizing campaign 10 could be defeated before to the Board issues its final determination with respect to the complaint 11 at issue. In particular, the risk that the terminated employees and those who have been retaliated 12 against will be scattered to other employers and that other potential union supporters will remain 13 silent for fear of similar treatment threatens the continued existence of any organizing effort. 14 Accordingly, the Court concludes that Petitioner has shown a likelihood of irreparable harm. 15 C. 16 Balance of the Equities and the Public Interest Respondents contend that the equities tip in their favor in light of the challenges facing 17 them as a small business and the cost of rehiring the terminated employees and balancing the 18 Saturday schedules. However, in light of the substantial evidence that Respondents engaged in 19 unfair labor practices and the likelihood that employees were retaliated against simply for 20 exercising their right to engage in efforts to bargain collectively, the balance of the equities tips 21 in favor of Petitioner. Respondents’ efforts to require employees to sign incorporation 22 documents that they did not understand in a language that the employees could not read raises 23 serious concerns about Respondents’ good faith in this matter. 24 Congress adopted § 10(j) of the National Labor Relations Act for the purpose of 25 preventing unfair labor practices that later action by the Board could not remedy. The public has 26 a strong interest in seeing that employees–particularly those at risk of being taken advantage of 27 by their employers–have the right to organize and bargain collectively. On the record before the 28 Court, it appears that it is decidedly in the public’s interest that Respondents’ employees be 12 Case No. 05:11-cv-001943 JF/HRL ORDER GRANTING PETITION FOR INJUNCTION (JFLC3) 1 assured of their right to bargain collectively without fear of coercion. 2 3 4 5 6 7 IV. ORDER Good cause therefor appearing, pending the final disposition of the related matter now before the National Labor Relations Board, the petition will be granted as follows: Respondents, their officers, representatives, agents, servants, employees and all persons acting on their behalf are: A. Enjoined and restrained from: 8 1) Telling employees that they can unionize only under their own corporations, 9 thus implying that their support for the Union is futile; offering employees improved working 10 conditions if they abandon their support for the Union; and, telling employees that they will be 11 terminated, they will lose their jobs, they will receive reduced work and hours, or that 12 Respondents will sell or close the business because the employees support the Union or engage 13 in protected concerted activities, such as signing a letter protesting Respondents’ mistreatment of 14 employees; 15 2) Reducing employees’ work assignments and hours because employees support 16 the Union or engage in protected concerted activities, such as signing a letter protesting 17 Respondents’ mistreatment of employees; 18 3) Terminating employees because they support the Union or engage in protected 19 concerted activities, such as signing a letter protesting Respondents’ mistreatment of employees; 20 21 22 4) In any like or related manner interfering with, restraining, or coercing their employees exercise of the rights guaranteed under Section 7 of the National Labor Relations Act. B. To take the following affirmative action: 23 24 25 1) Immediately restore its employees’ work assignments and hours to the status quo ante; 2) Within seven (7) days of issuance of this Order, offer interim reinstatement to 26 Jesus Garcia Marquez and Alberto Pizano to their former positions and previous wages and 27 working conditions, and reinstate them immediately upon acceptance of that offer; 28 3) Upon the Union’s request, for a period of one year from the date of this Order 13 Case No. 05:11-cv-001943 JF/HRL ORDER GRANTING PETITION FOR INJUNCTION (JFLC3) 1 or until further order of this Court or the Board, furnish the Union with the full names and 2 addresses of its current employees. 3 4) Within seven (7) days of issuance of this Order, hold a meeting or meetings, 4 scheduled to ensure the widest possible attendance, at which this Order is to be read to the 5 employees in both English and Spanish by Respondents’ owner/manager Hilda Andrade, or at 6 Respondents’ option, by a Board agent in Andrade’s presence. The Board shall be afforded a 7 reasonable opportunity to provide for the attendance of a Board agent at any assembly of 8 employees called for the purpose of reading the Court’s Order. 9 5) Within seven (7) days of issuance of this Order, post copies of the Order in 10 both English and a Spanish translation approved by the Petitioner at Respondents’ facility on 11 bulletin boards or other conspicuous locations where notices to employees are typically posted, 12 and grant agents of the Board access to Respondents’ facility to monitor compliance with the 13 posting requirements; 14 6) Within fourteen (14) days of the issuance of this Order, file with the Court, 15 with a copy submitted to the Petitioner, a sworn affidavit from a responsible official of the 16 Respondents, setting forth with specificity the manner in which Respondents have complied with 17 the terms of the Order, including how, when, and to whom the Order was read. 18 19 20 IT IS SO ORDERED. 21 DATED: May 17, 2011 __________________________________ JEREMY FOGEL United States District Judge 22 23 24 25 26 27 28 14 Case No. 05:11-cv-001943 JF/HRL ORDER GRANTING PETITION FOR INJUNCTION (JFLC3)
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