Jill Coffman v. Queen of the Valley Med Center

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JILL HAWKEN COFFMAN, No. 17-17413
Regional Director of Region
20 of the National Labor D.C. No.
Relations Board, for and on 4:17-cv-05575-YGR
behalf of the NATIONAL
LABOR RELATIONS BOARD,
Petitioner-Appellee, OPINION

v.

QUEEN OF THE VALLEY
MEDICAL CENTER,
Respondent-Appellant.

Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted June 14, 2018
San Francisco, California

Filed July 16, 2018

Before: Mary M. Schroeder and Ronald M. Gould, Circuit
Judges, and Miranda M. Du,* District Judge.

Opinion by Judge Schroeder

*
The Honorable Miranda M. Du, United States District Judge for the
District of Nevada, sitting by designation.
2 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

SUMMARY**

Labor Law / Preliminary Injunction

The panel affirmed the district court’s entry of a
preliminary injunction, pursuant to Section 10(j) of the
National Labor Relations Act (“NLRA”), requiring the
employer to engage in unconditional bargaining with a union.

The panel held that an employer cannot begin
unconditional bargaining and later withdraw recognition
because such actions interfere with the union’s collective
bargaining rights protected by the NLRA. The panel held that
the Regional Director of the National Labor Relations Board
had shown a sufficient likelihood of success in establishing
its underlying position that the employer recognized the union
and engaged in unconditional bargaining before withdrawing
recognition and refusing to bargain in violation of Section
8(a)(1) of the NLRA. The panel held that the Director
established a continuing threat of irreparable harm to the
union’s collective bargaining rights to support the
extraordinary remedy of injunctive relief. The panel also held
that the harm to the union outweighed the harm to the
employer. The panel further held that the district court did
not abuse its discretion in balancing the equities, and in
finding that injunctive relief in this case was in the public
interest.

The panel held that the Director submitted sufficient
evidence to establish a likelihood of success and irreparable

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 3

harm with regard to the union’s claim that the employer
discriminated against an employee for his union activity in
violation of Section 8(a)(1) and (3) of the NLRA.

COUNSEL

Ronald J. Holland (argued), Philip Shecter, and Ellen
Bronchetti, DLA Piper LLP, Menlo Park, California, for
Respondent-Appellant.

Rebecca J. Johnston (argued), Attorney; Richard J. Lussier,
Supervisory Attorney; Elinor L. Merberg, Assistant General
Counsel; Jayme L. Sophir, Associate General Counsel; Peter
B. Robb, General Counsel; National Labor Relations Board,
Washington, D.C.; for Petitioner-Appellee.

OPINION

SCHROEDER, Circuit Judge:

It is a well-settled principle of labor relations law that an
employer cannot start unconditional bargaining with a union
and then quit when negotiations do not go well. In this case,
a Regional Director (“Director”) of the National Labor
Relations Board (“Board”) believed the employer did just
that. The Director successfully applied for an injunction
pursuant to Section 10(j) of the National Labor Relations Act
(“NLRA”), 29 U.S.C. § 160(j), requiring the employer to
engage in unconditional bargaining. In this appeal from that
injunction, the employer contends the Director lacked a
sufficient likelihood of success in establishing its underlying
position that the employer recognized the union and engaged
4 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

in unconditional bargaining before withdrawing recognition
and refusing to bargain. According to the employer, it did
nothing more than bargain conditionally to preserve its right
to challenge the results of the union election.

The record shows that the employer had considerable
dealings with the union following the union’s certification,
including discussions that resulted in agreements over some
hours and working conditions, and that these negotiations
took place before the employer made any official challenge
to the certification. We therefore hold that the Director has
shown a sufficient likelihood of success in establishing a
withdrawal of recognition and refusal to bargain
unconditionally, as well as a continuing threat of irreparable
harm to the union’s collective bargaining rights, to support
the extraordinary remedy of injunctive relief. We affirm the
District Court’s entry of the preliminary injunction. We
vacate the stay previously entered by a motions panel of our
Court.

Background

I. Factual history

A. Employer’s withdrawal of union recognition

The employer in this case is Queen of the Valley Medical
Center (“QVMC”), which operates an acute-care medical
facility in Napa, California. The union is the National Union
of Healthcare Workers (“Union”). The employee bargaining
unit consists of nonprofessional and technical employees at
QVMC’s facility. In the mail ballot election held on
November 15, 2016, a majority of eligible bargaining-unit
employees voted by a wide margin for the Union’s
 COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 5

representation. QVMC objected to the election results, but
the Director overruled those objections and, on December 22,
2016, certified the Union as the employees’ bargaining
representative.

QVMC then filed a request for review of the Union’s
certification with the Board on January 9, 2017, but the Board
denied that request on February 28, 2017. The first formal
communication from the employer to the Union of a refusal
to recognize the Union came weeks later, on March 16, 2017.
On that day, QVMC sent the Union a letter asserting that the
mail ballot election was flawed and demanding that the Union
“stipulate to a new in-person election.” If the Union refused,
QVMC stated, it would “engage in a ‘technical refusal to
bargain,’” by “formally notify[ing] the Union that [QVMC]
believes the unit certification was faulty and . . . refuse to
bargain with the Union so that [QVMC could] pursue its
review of the certification in the courts.” QVMC stated that
it would “discuss the terms of a collective bargaining
agreement [but] with the mutual understanding that it [would]
only take effect if and when all of [QVMC’s] appeals in court
are denied.”

This case is before our Court on an injunction because,
prior to the March 16 letter, QVMC had extensive discussions
with the Union about working conditions and schedules for
members of the bargaining unit. Before QVMC’s January 9
request for review of the Union’s certification, QVMC’s
Directors of Labor and Human Resources arranged a
meeting with the Union to negotiate the schedule and job
assignment of a bargaining-unit employee. During these
communications, QVMC’s agents did not indicate to the
Union that QVMC was bargaining conditionally by reserving
its right to contest the Union’s certification. The Director
6 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

therefore concluded injunctive relief would be appropriate
and the District Court agreed.

The record before the District Court reflects the extent of
the parties’ dealings with each other after QVMC’s request
for review was denied on February 28, 2017, but before
QVMC sent its “technical refusal to bargain” letter on March
16. QVMC provided information to the Union that was
relevant for the full collective bargaining agreement and
promised to respond further “as [data became] available.”
QVMC stated that it would respond to the Union’s proposed
dates for the full bargaining session as well. During the same
time period before March 16, QVMC proposed dates and
attempted to schedule a meeting with the Union regarding
bargaining-unit phlebotomists’ schedule changes. Also
during this time period, QVMC and the Union arranged for a
Union representative to attend a bargaining-unit employee’s
investigatory meeting. On March 2, the Union requested
information from QVMC regarding changes to the schedules
of bargaining-unit employees in the Sterile Processing
Department and asked QVMC to cease and desist from
implementing the changes until the parties could discuss the
changes. QVMC met with the Union and employees the
same day to address the proposed scheduling changes. At no
time during this period after certification and before March
16, did QVMC’s agents indicate or communicate to the
Union that QVMC was bargaining conditionally and
reserving a right to contest the Union’s certification.

QVMC’s delay in communicating its intention to contest
the Union’s certification resulted in a loss of Union support.
Following the Union’s certification in December 2016,
employees elected approximately thirty bargaining team
members to represent them in the full bargaining
 COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 7

negotiations. From January through March 2017, the Union
held monthly bargaining team meetings at QVMC’s facility
and thirty or more unit members attended. After QVMC sent
its “technical refusal to bargain” letter in March 2017,
employee attendance at the bargaining team meetings fell to
fourteen employees in April, twelve employees in May, and
by November, only nine.

The employees who attended the meetings in April and
May, after QVMC sent the March 16 letter, expressed
frustration with the Union’s ineffectiveness at representing
them, and indicated that it was becoming harder to maintain
Union support. Employees informed the Union that they
feared retaliation and were not willing to “stick their necks
out” for the Union. Some unit members resigned their
bargaining team positions or quit their employment at
QVMC. Employees in several departments indicated that
QVMC’s hostility toward the Union created a tense work
environment, and some employees refused to participate in
Board proceedings out of fear of retaliation. Employees who
previously opposed QVMC’s unilateral changes later
expressed reluctance to, and that they perceived futility in,
fighting such changes given the Union’s perceived
ineffectiveness.

The record before the District Court also reflects that
following the March 16 letter, the Union’s representative was
prevented from accessing department break rooms, where she
previously had access, and she noticed an increase in QVMC
security guard presence around her. QVMC’s managers
prevented her from speaking with unit members as well, and
bargaining unit members expressed reluctance to speak with
her.
8 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

B. Employer’s discrimination against employee Arroyo
for union support

Even before the Union election in November 2016, things
did not go smoothly between the Union and QVMC. Before
the election, QVMC transferred a well-known Union
supporter, Miguel Arroyo, to a different shift at its facility,
even though Arroyo had worked with his wife in the same
department on the same shift for three years. Arroyo had
worn Union buttons and appeared on the Union’s flyers and
social media page. According to an affidavit submitted by a
QVMC employee, after discovering Arroyo’s photo on the
Union’s social media page, Arroyo’s supervisor wanted to
make Arroyo “hurt” for his Union activity and concluded that
changing Arroyo’s schedule would create transportation
issues for his family. The supervisor structured the shift
change so that it would not appear retaliatory and told Arroyo
that the change was based on QVMC’s policy that spouses
were not allowed to work the same shift in the same
department. QVMC had not, however, enforced its policy in
the past. The record reflects that Arroyo’s transfer occurred
a few days before the November 2016 Union election.

II. Procedural history

The Union filed a series of unfair labor practice charges
in early 2017, alleging that QVMC violated Section 8(a)(1),
(3), and (5) of the NLRA. See 29 U.S.C. § 158(a)(1), (3), (5).
The Union filed its first charge on January 20, 2017, and
amended it on February 1 and again on February 14, asserting
that QVMC discriminated against employees for supporting
the Union, made unlawful unilateral changes to employee
schedules and other working conditions, and failed to timely
provide the Union with relevant bargaining information.
 COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 9

After QVMC’s March 16 “technical refusal to bargain” letter,
the Union filed a second charge on April 3, 2017. This
charge asserted that QVMC threatened to withdraw and then
withdrew recognition of the Union, threatened to stop and did
stop unconditional bargaining with the Union, and failed to
furnish the Union with relevant bargaining information. The
Union’s third and fourth charges on April 21, 2017, claimed
that, at an investigatory meeting, QVMC denied an
employee’s right to Union representation, and that QVMC
had retaliated and discriminated against employees for Union
activity, made unilateral changes to terms and conditions of
employment, and then, in March 2017, withdrew recognition
of the Union.

On the basis of the Union’s charges, the Director issued
an administrative complaint on May 31, 2017, and, after
receiving authorization from the Board’s General Counsel,
petitioned the District Court on September 26 for temporary
injunctive relief under Section 10(j) of the NLRA, id.
§ 160(j). The petition asked the District Court to order
QVMC to cease and desist from engaging in the alleged
unfair labor practices, restore the Union’s position to the
status quo prior to QVMC’s withdrawal of recognition, post
copies of the District Court’s order at QVMC’s facility, and
read the District Court’s order to employees. Along with the
Director’s petition for an injunction, the Director submitted
the administrative record, which included affidavits of
QVMC employees and Union representatives as well as e-
mails, letters, and agreements between QVMC and the Union.

The District Court granted the Director’s request for a
preliminary injunction on November 30, 2017. The District
Court found that the Director demonstrated a likelihood of
success on the merits of the claims that QVMC violated
10 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

Section 8(a)(1), (3), and (5) by refusing to bargain
unconditionally, interfering with employee rights, and
discouraging union membership. See id. § 158(a)(1), (3), (5).
The court explained that the Director presented persuasive
evidence that QVMC engaged in unconditional bargaining
with the Union after the Union election until QVMC’s letter
of March 16, and that QVMC subsequently withdrew its
recognition of the Union and refused to bargain
unconditionally in violation of Section 8(a)(1) and (5). See
id. § 158(a)(1), (5). The District Court also found that the
Director was likely to succeed on the claim of unlawful
discrimination against Arroyo, in violation of Section 8(a)(1)
and (3), because the Union’s evidence established a prima
facie case of discrimination and it was unlikely QVMC would
succeed in showing that it would have treated Arroyo the
same way absent his Union activity. See id. § 158(a)(1), (3).

The District Court further found that the Union faced a
likelihood of irreparable harm, because employee attendance
at Union meetings had fallen and employees feared retaliation
and hostility for their Union activity. What harm there may
have been to QVMC from being required to bargain with the
Union could not offset the Director’s showing of irreparable
harm to the Union from QVMC’s actions. Public interest
favored enjoining QVMC as well, according to the court,
because “injunctive relief in the context of an unlawful
withdrawal of recognition case is particularly appropriate.”
Coffman v. Queen of the Valley Med. Ctr., No. 17-cv-05575-
YGR , at 7 (N.D. Cal. Nov. 30, 2017) (order granting
preliminary injunction). The court squarely rejected
QVMC’s position that an injunction in this case would
unfairly insulate the Union’s certification from judicial
review, stating that “a technical refusal defense ‘does not
immunize the employer from injunctive relief . . . . [;
 COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 11

e]xposure to an unfair labor charge and the possibility of
[Section 10(j)] injunctive relief is a risk the employer must
choose to bear when engaging in a technical refusal to
bargain.’” Id. (quoting Kendellen v. Interstate Waste Servs.
of N.J., No. CIV. 06-5694 (SRC), 2007 WL 121435, at *3
(D.N.J. Jan. 11, 2007)) (alterations in original).

On appeal, QVMC principally contends that the District
Court erred in finding that the Director is likely to succeed on
the refusal to bargain charge, because QVMC never
recognized the Union. QVMC asserts that it bargained
conditionally with the Union to challenge the Union’s
certification, and that any unfair labor practice QVMC
committed was necessary to preserve its right to challenge the
certification. QVMC asserts that the District Court’s
injunction is unfair because it requires unconditional
bargaining and results in QVMC’s waiver of the right to
challenge the Union’s certification. The Director, however,
contends that QVMC waived its challenge to the certification
by recognizing the Union and bargaining with it
unconditionally after the Union’s certification, and then later,
on March 16, unlawfully tried to withdraw that recognition.
The Director thus concludes that QVMC may no longer
challenge the Union’s certification.

As for the Arroyo discrimination claim, QVMC
challenges the evidentiary basis for the finding of
discrimination against Arroyo and contends that Arroyo
himself faces no likelihood of irreparable harm. The Director
responds that the evidence is sufficient and that she need not
show a likelihood of irreparable harm as to Arroyo
individually, apart from harm to the unit as a whole.
12 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

We have jurisdiction under 28 U.S.C. § 1292(a)(1), and
we affirm the District Court’s injunction in all respects.

Discussion

This case involves some of the most fundamental
provisions of the NLRA—Section 8(a)(1), (3), and (5). See
29 U.S.C. § 158(a)(1), (3), (5). Section 8(a)(5) is intended to
protect union activity and collective bargaining rights by
making it an unfair labor practice “to refuse to bargain
collectively with the representatives of [the] employees.” Id.
§ 158(a)(5). Section 8(a)(1) protects the rights of employees
to unionize by prohibiting employers from “interfer[ing] with
. . . employees in the exercise of the rights guaranteed” under
the NLRA, such as “the right to . . . join[] or assist labor
organizations [and] to bargain collectively through
representatives of their own choosing.” Id. §§ 157, 158(a)(1).
Section 8(a)(3) similarly prohibits employers from
“discriminat[ing] in regard to . . . any term or condition of
employment to . . . discourage membership in any labor
organization.” Id. § 158(a)(3).

Section 10(j) authorizes the Board to seek a preliminary
injunction in federal district court to enjoin an employer’s
unfair labor practice. Id. § 160(j). The district court may
grant “such temporary relief . . . as it deems just and proper”
under the NLRA. Id. Courts apply the preliminary injunction
standard set forth by the Supreme Court in Winter v. Natural
Resource Defense Council, Inc., 555 U.S. 7, 20 (2008). See
McDermott ex rel. NLRB v. Ampersand Publ’g, LLC,
593 F.3d 950, 957 (9th Cir. 2010). In Winter, the Supreme
Court held that “[a] plaintiff seeking a preliminary injunction
must establish [(1)] that he is likely to succeed on the merits,
[(2)] that he is likely to suffer irreparable harm in the absence
 COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 13

of preliminary relief, [(3)] that the balance of equities tips in
his favor, and [(4)] that an injunction is in the public interest.”
555 U.S. at 20.

We review for abuse of discretion a district court’s grant
of injunctive relief. Small ex rel. NLRB v. Operative
Plasterers’ & Cement Masons’ Int’l Ass’n Local 200, AFL-
CIO, 611 F.3d 483, 489 (9th Cir. 2010). “The district court
abuses its discretion if it relies on a clearly erroneous finding
of fact or an erroneous legal standard.” Id.

I. Employer’s withdrawal of union recognition in violation
of Section 8(a)(1) and (5)

A. Success on the merits

To obtain injunctive relief, the Director must show a
likelihood of success on the merits, which we have held
involves showing a “probability that the Board will issue an
order determining that the unfair labor practices alleged by
the . . . Director occurred and that this Court would grant a
petition enforcing that order.” Frankl ex rel. NLRB v. HTH
Corp., 693 F.3d 1051, 1062 (9th Cir. 2012) (Frankl II)
(quoting Frankl ex rel. NLRB v. HTH Corp., 650 F.3d 1334,
1355 (9th Cir. 2011) (Frankl I)). The petitioner meets this
burden if it can “produc[e] some evidence to support the
unfair labor practice charge, together with an arguable legal
theory.” Id. (quoting Frankl I, 650 F.3d at 1356) (alteration
in original). Here, the Director alleges that QVMC engaged
in several unfair labor practices, including withdrawal of
recognition of the Union and refusal to bargain
unconditionally. The District Court held that the Director
presented persuasive evidence that QVMC bargained with the
14 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

Union after the election until March 16, 2017, when QVMC
unlawfully withdrew recognition.

Under the NLRA, employers and unions have a “mutual
obligation” to engage in unconditional collective bargaining,
which involves “meet[ing] at reasonable times and
confer[ring] in good faith with respect to wages, hours, and
other terms and conditions of employment.” 29 U.S.C.
§ 158(d); see also Terrace Gardens Plaza, Inc. v. NLRB,
91 F.3d 222, 225 (D.C. Cir. 1996). Board certification of a
union establishes the union as the collective bargaining
representative and creates a duty on the employer to bargain
with the representative. See Brooks v. NLRB, 348 U.S. 96,
98–99, 104 (1954); see also Technicolor Gov’t Servs., Inc. v.
NLRB, 739 F.2d 323, 327 (8th Cir. 1984).

An employer may not begin to bargain unconditionally
with a union and then later withdraw recognition and refuse
to bargain unconditionally. 29 U.S.C. § 158(a)(1), (5);
Schwarz Partners Packaging, LLC, 362 NLRB No. 138, 2015
WL 4179686, at *4 (June 26, 2015). Such a withdrawal of
recognition constitutes an unfair labor practice, which the
Board may seek to enjoin. 29 U.S.C §§ 158(a)(5), 160(j).
The question in this case is whether the Director has shown
a likelihood of success in establishing an unlawful withdrawal
of recognition. We must determine whether the employer’s
conduct after the certification constituted conditional
bargaining that would have preserved the employer’s
challenge to the Union’s certification, or whether the
employer’s conduct constituted unconditional bargaining that
waived the employer’s right to challenge the Union’s
certification. The District Court ruled that QVMC’s
communications with the Union before March 16, 2017,
demonstrated unconditional bargaining, which waived the
 COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 15

certification challenge. The relevant authorities support that
conclusion.

Our sister circuits and the Board have considered cases
raising similar issues. We therefore draw upon their
decisions for guidance here. These authorities establish that
if an employer wishes to challenge a union’s certification, the
“employer must refuse to recognize [the] union immediately
after the [union] has been certified.” Technicolor Gov’t
Servs. Inc., 739 F.2d at 327. The Eighth Circuit in
Technicolor held that if the employer recognizes a union by
entering into negotiations with it, the employer waives its
objection that the union’s certification is invalid. Id. The
employer in Technicolor waived its challenge to the union’s
certification by entering into negotiations following the
union’s election and certification and only challenging the
certification for the first time as a collateral defense to an
unfair labor practice charge. Id.

The D.C. Circuit has similarly held that an employer can
reserve its right to challenge union certification by refusing
to bargain unconditionally. Terrace Gardens Plaza, Inc.,
91 F.3d at 226. The court explained that, if the employer
contests the certification, the union may file an unfair labor
practice charge of refusal to bargain. See Id. at 225. As an
affirmative defense to the charge, the employer may contend
the certification was invalid. Id. (citing Boire v. Greyhound
Corp., 376 U.S. 473, 477 (1964)). The D.C. Circuit
succinctly stated the principle that the employer “may
negotiate with, or challenge the certification of, the [u]nion;
it may not do both at once.” Id. Unless the challenge is
successful, however, the employer has been guilty of an
unfair labor practice. Id. at 226.
16 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

The D.C. Circuit in Terrace Gardens thus rejected the
employer’s position that, because it refused to bargain in
order to obtain a judicial forum to resolve its challenge to the
certification, it should under no circumstances be guilty of an
unfair labor practice. Id. at 225. The court’s response was
that the employer had to win the certification challenge in
order to defeat the unfair labor practice charge. Id. at 226.
To preserve its challenge to certification the employer must
make that challenge immediately after the certification. See
id. at 224–26.

The employer in this case argues it has similarly timely
reserved its challenge to certification. QVMC’s problem is
that according to the Director, rather than timely reserving its
right to challenge certification, QVMC first negotiated with
the Union and then withdrew recognition. An employer
cannot engage in unconditional bargaining and later withdraw
recognition.

Board authority emphasizes the importance of immediacy
in an employer’s refusal to bargain unconditionally and
illustrates conduct constituting unconditional bargaining. The
leading case is Fred’s Inc., where the day after certification
the employer refused to bargain with the union. 343 NLRB
138, 138 (2004). The Board held in Fred’s that the employer
never unconditionally bargained with the union, because the
employer “clearly indicated in its communications with the
General Counsel and the [u]nion its intention to test the
[u]nion’s certification.” Id. The challenge to the union’s
certification was therefore preserved.

From the above cases, two principles emerge with
relevance to this case. First, to preserve a challenge to the
certification, the employer must refuse to bargain
 COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 17

immediately after the union’s certification. See Technicolor
Gov’t Servs. Inc., 739 F.2d at 327; Fred’s Inc., 343 NLRB at
139. Second, if the employer does not immediately refuse to
bargain, it waives its right to challenge the union’s
certification. Technicolor Gov’t Servs. Inc., 739 F.2d at 327;
see also Schwarz Partners Packaging, LLC, 2015 WL
4179686, at *3–4 (holding employer waived challenge to
union’s certification when employer met and bargained with
union over full collective bargaining agreement and agreed to
schedule new meetings).

Our Circuit’s case law is consistent with these principles,
because we have observed that an employer’s delay in
bargaining harms the union and the collective bargaining
process. As we stated in Small ex rel. NLRB v. Avanti Health
Sys., LLC, 661 F.3d 1180, 1192 (9th Cir. 2011), “a delay in
bargaining weakens support for the union.” Such delay
reduces the union’s bargaining power relative to the
employer’s. We recognized in Frankl I that such harm may
be irreparable; we said that “even if the Board subsequently
orders a bargaining remedy, the union is likely weakened in
the interim, and it will be difficult to recreate the original
status quo with the same relative position of the bargaining
parties.” 650 F.3d at 1363. Employees suffer from the
employer’s delay, and remedies other than injunctive relief
may be less than adequate. As we further recognized in
Frankl I, “the Board generally does not order retroactive
relief, such as back pay or damages, to rank-and-file
employees for the loss of economic benefits that might have
been obtained had the employer bargained in good faith.” Id.
These opinions buttress our conclusion that an employer
cannot begin unconditional bargaining and later withdraw
recognition. Such actions interfere with the union’s
collective bargaining rights protected by the NLRA.
18 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

Here, the Director has shown a likelihood of success in
establishing that QVMC engaged in just such proscribed
conduct. The record before the District Court shows that
QVMC took part in several bargaining meetings with the
Union, discussing specific terms and conditions of
employment, and provided information relevant for a
comprehensive collective bargaining agreement. These
discussions took place after certification and before any
refusal to bargain. The District Court concluded that QVMC
engaged in “unconditional bargaining which waived the
preservation of its certification challenge.” Coffman, No. 17-
cv-05575-YGR, at 3.

QVMC does not dispute that meetings with the Union
took place, but argues that they amounted to informational
sessions rather than bargaining. The leading Board case on
informational meetings is In re Terracon, Inc., 339 NLRB
221 (2003). There, the Board held that a meeting was for
informational purposes rather than for bargaining because the
employer only met with the union representatives once for a
brief period of time and never made any comments conceding
the union’s majority status or connoting an intent to recognize
the union. In re Terracon, Inc. 339 NLRB at 225. Specific
issues were never the subject of mutual discussion. During
the meeting, the employer stated that the specific union
demands “were unlikely to be a problem.” Id. (internal
quotation marks omitted). The Board concluded that the
employer was simply attempting to “educate itself about the
[u]nion’s purported purpose and to assess whether or not it
should grant recognition to the [u]nion.” Id.

Here, however, the record indicates the meetings between
the Union and QVMC were not mere informational sessions;
specific issues were discussed. For two and a half weeks,
 COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 19

before sending its “technical refusal to bargain” letter,
QVMC representatives met with Union representatives and
discussed various issues, including employee schedule
changes and arrangement of a Union representative’s
presence at an employee’s investigatory meeting. QVMC
also provided information relevant to the parties’ full
collective bargaining agreement, promised to furnish more
information later, and agreed to schedule a meeting to
negotiate a comprehensive collective bargaining agreement.
QVMC was likely not, as the employer was in Terracon, still
“educat[ing] itself about the Union’s purported purpose”
during that time. See id.

Other Board decisions show that, when the employer
engages in bargaining discussions, it commits to negotiations
and thereby waives any challenge to certification. See Prof’l
Transp., Inc., 362 NLRB No. 60, 2015 WL 1510979, at *1–2
(Apr. 2, 2015) (holding employer waived challenge to union’s
certification when it held several bargaining sessions with
union after certification); In re Konig, 318 NLRB 901, 904
(1995) (holding employer’s conduct “amounted to a waiver
of its right to challenge the [union’s] certification,” because
after certification employer did not contest certification’s
validity “and proceeded instead, just 1 month later, to
recognize the [u]nion by engaging in contract negotiations
with it”).

The Director therefore presented evidence to establish
that QVMC engaged in unfair labor practices by recognizing
and bargaining unconditionally with the Union and later
unlawfully withdrawing recognition of the Union and
refusing to unconditionally bargain. The Director established
a likelihood of success on the merits.
20 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

B. Irreparable harm, balance of equities, and public
interest

The Director also provided sufficient evidence to
demonstrate a likelihood of irreparable harm due to QVMC’s
unfair labor practices. The Director’s evidence indicates
irreparable harm from dissipation of employee support for the
Union as well as employee fear of retaliation and
discrimination by the employer. See Avanti, 661 F.3d at
1192; Frankl I, 650 F.3d at 1363. The District Court
appropriately found that the Union had “offered sufficient
evidence of a likelihood of irreparable harm in the absence of
an injunction.” Coffman, No. 17-cv-05575-YGR, at 6.

The District Court further held that the harm to the Union
outweighed the harm to QVMC. QVMC contends that the
District Court erred in balancing the equities, because QVMC
will face significant hardship if forced to recognize and
bargain with the Union. QVMC also argues it will face
hardship in rescinding all unilateral changes, allowing the
Union access to its property, and forcing QVMC to read the
District Court’s order to its employees. The District Court
weighed the equities, finding that the preservation of the
status quo as it existed before QVMC’s unfair labor practices
outweighed any hardship QVMC might suffer if required to
bargain. See NLRB v. Gissel Packing Co., 395 U.S. 575, 612
(1969) (holding a bargaining order may be necessary “to re-
establish the conditions as they existed before the employer’s
unlawful campaign”). There was no abuse of discretion.

Finally, the District Court did not abuse its discretion in
finding that injunctive relief in this case is in the public
interest. We have previously stated that when the “Director
makes a strong showing of likelihood of success and of
 COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 21

likelihood of irreparable harm, the Director will have
established that preliminary relief is in the public interest.”
Frankl I, 650 F.3d at 1365. We have seen that such a
showing has been made.

II. Employer’s discrimination against employee Arroyo for
Union support in violation of Section 8(a)(1) and (3)

The injunction required that Arroyo be reinstated.
QVMC argues that the Union failed to establish a likelihood
of success and irreparable harm with regard to the claim that
QVMC discriminated against Arroyo for his Union activity.
Under Section 8(a)(1) and (3) of the NLRA, an employer
commits an unfair labor practice if it interferes with or
discourages an employee’s right to join a labor union and
bargain collectively. 29 U.S.C. §§ 157, 158(a)(1), (3); Frankl
II, 693 F.3d at 1062. We held in Frankl II that an employer
discriminates against an employee under the NLRA “when
the employee’s involvement in a protected activity was a
substantial or motivating factor in the employer’s decision to
discipline or terminate the employee.” 693 F.3d at 1062. To
establish that the conduct was a substantial or motivating
factor, the Director need only show that “the employee was
engaged in protected activity, the employer knew of such
activity, and the employer harbored anti-union animus.” Id.
After establishing these elements, we shift the burden to the
employer “to demonstrate that it would have taken the same
action regardless of the employee’s union activity.” Id. As
we stated in United Nurses Associations of California v.
NLRB, an employer cannot overcome this burden “where its
‘asserted reasons for a discharge are found to be pretextual.’”
871 F.3d 767, 779 (9th Cir. 2017) (quoting In re Stevens
Creek Chrysler Jeep Dodge, Inc., 357 NLRB 633, 637
(2011)).
22 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

Here, the Director submitted evidence sufficient to
establish a likelihood of success and irreparable harm for the
discrimination claim. Contrary to QVMC’s assertion, we
may consider the affidavits submitted by the Director as
evidence at the preliminary injunction stage. See Asseo v.
Pan Am. Grain Co., 805 F.2d 23, 26 (1st Cir. 1986)
(“Affidavits and other hearsay materials are often received in
preliminary injunction proceedings.”).

The affidavits show that QVMC’s employee Arroyo
engaged in protected activity by, among other things,
appearing in a pro-Union picture posted on the Union’s social
media page. QVMC knew of Arroyo’s Union support
through a manager who saw the post. The manager, shortly
after seeing the post and one week before the Union’s
election, conspired to make Arroyo “hurt” for his Union
activity by changing Arroyo’s schedule to create
transportation issues for his family and cause Arroyo to
receive less pay on the different shift. QVMC offered some
evidence of a non-discriminatory reason for the shift change,
i.e., its policy prohibiting relatives from working together in
the same department. However, the Director presented
evidence that QVMC had not enforced the policy in the past.
QVMC enforced its policy only after it learned of Arroyo’s
Union support, and only against Arroyo. This is sufficient to
establish a prima facie case of unlawful discrimination and
that QVMC’s asserted justification is pretextual. Thus, the
Director has shown a likelihood of success on the claim of
discrimination against Arroyo.

The Director also established a likelihood of irreparable
harm for the discrimination claim. Such harm includes
economic and non-economic benefits to employees. See
Avanti, 661 F.3d at 1191–92. As the Seventh Circuit has
 COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 23

recognized, if the Director presents evidence of an
employer’s “clear hostility toward the Union, as well as a
pattern of discrimination against employees active in the
Union,” the Director establishes a likelihood of irreparable
harm for a preliminary injunction. Lineback v. Spurlino
Materials, LLC, 546 F.3d 491, 501–02 (7th Cir. 2008). The
record here shows QVMC on several occasions engaged in
retaliatory and hostile acts against Union supporters. The
Union established a likelihood of irreparable harm for the
discrimination claim.

Conclusion

The District Court’s injunction is AFFIRMED. This
Court’s prior order staying the injunction pending appeal is
vacated. The mandate shall issue immediately.