FILED
NOT FOR PUBLICATION
FEB 17 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CORNELE A. OVERSTREET, Regional No. 16-15172
Director of the Twenty-Eighth Region of
the National Labor Relations Board, D.C. No. 2:15-cv-01785-DJH
Petitioner-Appellee,
MEMORANDUM*
v.
SHAMROCK FOODS COMPANY,
Respondent-Appellant.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Argued and Submitted September 15, 2016
San Francisco, California
Before: GOULD and BERZON, Circuit Judges, and TUNHEIM,** Chief District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
Shamrock Foods appeals the district court’s grant of a temporary injunction
under Section 10(j) of the National Labor Relations Act (“NLRA”), 29 U.S.C.
§ 160(j). We affirm.
1. As an initial matter, the portions of the temporary injunction related to the
discharge of Thomas Wallace are not moot, notwithstanding the settlement
agreement in which Wallace accepted a $214,000 payment in lieu of reinstatement,
and waived his right to reinstatement and to any other administrative remedy.
Claims are moot “[i]f there is no longer a possibility that [the litigant] can obtain
relief for his claim.” Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003) (quoting
Ruvalcaba v. City of L.A., 167 F.3d 514, 521 (9th Cir. 1999)).
Here, the Regional Director’s claims with respect to Wallace’s discharge are
not moot. The National Labor Relations Board retains the authority to order
Wallace’s reinstatement and other related remedies. “[T]he Board alone is vested
with lawful discretion to determine whether a proceeding, when once instituted,
may be abandoned.” Indep. Stave Co., 287 N.L.R.B. 740, 741 (1987) (quoting
Robinson Freight Lines, 117 N.L.R.B. 1483, 1485 (1957)). Likewise, “the Board
has no statutory obligation to defer to private settlement agreements,” although it
“may defer in its discretion.” NLRB v. Int’l Bhd. of Elec. Workers, Local Union
112, 992 F.2d 990, 992 (9th Cir. 1993). Given that the settlement agreement
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between Shamrock Foods and Wallace does not deprive the Board of its authority
to order Wallace reinstated, and that “the underlying purpose of Section 10(j) is . . .
to preserve the Board’s remedial power while it processes the charge,” McDermott
v. Ampersand Publ’g., LLC, 593 F.3d 950, 957 (9th Cir. 2010) (internal quotations
omitted), the Regional Director’s petition for temporary relief with respect to
Wallace’s discharge is not moot.1
2. We review the district court’s grant of injunctive relief pursuant to Section
10(j) of the NLRA for an abuse of discretion. McDermott, 593 F.3d at 957. “The
district court abuses its discretion if it relies on a clearly erroneous finding of fact
or an erroneous legal standard.” Small v. Operative Plasterers’ & Cement Masons’
Int’l Ass’n Local 200, 611 F.3d 483, 489 (9th Cir. 2010).
The district court applied the correct legal standard to the temporary
injunction in this case, giving some deference to the Regional Director and
declining to apply the heightened standard announced in Overstreet v. United
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We also note that, given “the nature of interim § 10(j) relief and of the
Board’s final remedial power,” often a “§ 10(j) remedy will be identical, or at least
very similar, to the Board’s final order.” Frankl v. HTH Corp., 650 F.3d 1334,
1366 (9th Cir. 2011), cert denied, 132 S. Ct. 1821 (2012). “Very often, the most
effective way to protect the Board’s ability to recreate [the] relationships [that
would exist had there been no unfair labor practice] and restore the status quo will
be for the court itself to order a return to the status quo.” Id.
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Brotherhood of Carpenters, Local Union No. 1506, 409 F.3d 1199, 1207, 1210-12
(9th Cir. 2005). The heightened standard applies when an injunction would create
“at least some risk that constitutionally protected speech will be enjoined,” in
which case “only a particularly strong showing of likely success, and of harm . . .
as well [will] suffice” to justify issuing the requested injunction. United Bhd. of
Carpenters, 409 F. 3d at 1208 n.13; see also Operative Plasterers’, 611 F.3d at
491; McDermott, 593 F.3d at 958.
Here, the district court’s injunction implicates Shamrock Foods’s speech,
insofar as it prohibits interrogating employees about union sympathies, threatening
loss of benefits or wages or other reprisal, promising benefits in return for not
supporting the union, soliciting and promising to remedy employee grievances, and
directing employees to report union activity. But the injunction prohibits only
coercive speech, which is not protected by the First Amendment or the National
Labor Relations Act. See NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969).
“[A]n employer is free to communicate to his employees any of his general views
about unionism or any of his specific views about a particular union, [but only] so
long as the communications do not contain a ‘threat of reprisal or force or promise
of benefit.’” Id. (quoting 29 U.S.C. § 158(c)); see also Chamber of Commerce v.
Brown, 554 U.S. 60, 67 (2008) (noting that the Supreme Court has “recogniz[ed]
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the First Amendment right of employers to engage in noncoercive speech about
unionization” (emphasis added)). The injunction in this case does not prevent
Shamrock Foods from expressing its opinions regarding union representation, or
from otherwise engaging in noncoercive speech, and so it does not present a risk of
infringing Shamrock Foods’s rights under the First Amendment or Section 8(c) of
the NLRA.
Applying the ordinary standard for granting a temporary injunction, the
district court did not abuse its discretion in finding that the Regional Director is
likely to succeed on the merits of his claim, that irreparable harm is likely without
preliminary relief, and that the balance of hardships and the public interest favor an
injunction. See Frankl, 650 F.3d at 1355 (holding that courts determine whether a
Section 10(j) injunction is “just and proper” by applying the traditional equitable
criteria used to decide whether to grant a preliminary injunction).
First, the employee and employer affidavits, meeting transcripts, and
testimony before the administrative law judge (“ALJ”) support the district court’s
finding that the Regional Director is likely to succeed on the merits of his claims
that Shamrock Foods committed numerous unfair labor practices in violation of
Sections 8(a)(1) and 8(a)(3) of the NLRA. That is, the record shows a likelihood
of success on the merits with respect to claims that, on at least one occasion,
5
Shamrock Foods unlawfully: threatened employees with loss of benefits and other
reprisal if they unionized; interrogated employees about union sympathies;
surveilled employees’ protected concerted activities; created the impression of
surveillance; granted employee benefits to influence union activity; asked
employees to disclose union activities of their colleagues; informed employees that
it would be futile for them to select the union; solicited grievances and promised to
correct them as a reward for not supporting the union; selectively enforced no-
distribution and no-solicitation rules by confiscating union literature; and
discriminated by discharging and disciplining union supporters.2, 3
The district court also did not abuse its discretion in finding a likelihood of
irreparable harm absent preliminary relief. The record shows an observed drop-off
in union activity, as evidenced by a decline in the number of union authorization
2
Shamrock Foods is correct that before the ALJ the Regional Director
abandoned his claims with respect to some specific incidents, and that the ALJ
found some of the alleged incidents not to be unfair labor practices. But, the
Regional Director maintained at the hearing before the ALJ that Shamrock Foods
committed unfair labor practices of each type addressed in the injunction, and the
ALJ found at least one unfair labor practice in each category alleged.
3
The district court did not hold Shamrock Foods’s expression of anti-union
views likely to be an unfair labor practice, nor did the court enjoin such expression.
Instead, the district court held, inter alia, that Shamrock Foods likely committed an
unfair labor practice at a January 28, 2015 mandatory employee meeting by
threatening the loss of benefits.
6
cards signed and in attendance at union organizing meetings, resulting from
Shamrock Foods’s cumulative efforts to deter unionization. Such diminished
support for a union can be evidence that irreparable harm is likely absent a
preliminary injunction. See Small v. Avanti Health Sys., LLC, 661 F.3d 1180, 1192
(9th Cir. 2011) (“[A] delay in bargaining weakens support for the union, and a
Board order cannot remedy this diminished level of support.”). Moreover, “the
discharge of active and open union supporters risks a serious adverse impact on
employee interest in unionization and can create irreparable harm to the collective
bargaining process.” Frankl, 650 F.3d at 1363 (quoting Pye v. Excel Case Ready,
238 F.3d 69, 74 (1st Cir. 2001)). Given the documented diminished support for the
union, and the allegedly discriminatory discharge of Wallace, the district court did
not abuse its discretion in finding irreparable harm likely, absent preliminary relief,
due to the cumulative effect of the alleged unfair labor practices.
Finally, the district court did not abuse its discretion in finding that the
balance of hardships and the public interest favor an injunction. “[T]he District
Court’s determination that the Regional Director had shown likely irreparable harm
to the [union organizing campaign] meant that there was also considerable weight
on his side of the balance of the hardships.” Id. at 1365. Shamrock has not shown
any countervailing hardship, as the injunction does no more than require Shamrock
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to cease its coercive conduct and speech. Likewise, “the public interest is to ensure
that an unfair labor practice will not succeed because the Board takes too long to
investigate and adjudicate the charge.” Id. (quoting Miller v. Cal. Pac. Med. Ctr.,
19 F.3d 449, 460 (9th Cir.1994), abrogated on other grounds as recognized by
Frankl, 650 F.3d at 1355). The grant of a preliminary injunction serves the public
interest in this case by preventing Shamrock Foods from successfully undermining
the union organizing effort through potentially unlawful tactics.
For these reasons, we affirm the district court’s temporary injunction order
in all respects.
AFFIRMED.
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