United States District Court, W.D. Washington, Tacoma
RONALD K. HOOKS, Regional Director of the Nineteenth Region of the National Labor Relations Board, for and on behalf of NATIONAL LABOR RELATIONS BOARD, Petitioner,
AIM AEROSPACE SUMNER, INC., Respondent.
ORDER DENYING PETITION FOR PRELIMINARY
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on the petition for preliminary
injunctive relief of Petitioner Ronald K. Hooks, Regional
Director of the Nineteenth Region of the National Labor
Relations Board, for and on behalf of National Labor
Relations Board (“NLRB”) (Dkt. 1). The Court has
considered the pleadings filed in support of and in
opposition to the petition and the remainder of the file and
hereby denies the petition for the reasons stated herein.
PROCEDURAL AND FACTUAL BACKGROUND
December 21, 2017, the NLRB filed the instant petition
seeking preliminary relief. Dkt. 1. The NLRB alleges that
Respondent AIM Aerospace Sumner, Inc. (“AIM”)
engaged in unfair labor practices leading to a
decertification petition and withdrawal of recognition of the
International Association of Machinists, District 751
(“Union”) as the exclusive bargaining agent for
some of AIM's employees. The NLRB submitted evidence in
support of the allegations that AIM (1) blamed the union for
the inability to provide union employees with a pay raise,
(2) assisted the efforts of employee Lori Ann Downs-Haynes
(“Downs-Haynes”) in her efforts to collect
signatures on a decertification petition by transferring her
to different work areas to contact other employees, (3)
failed to reprimand or prevent Downs-Haynes from collecting
signatures or promoting the decertification efforts during
work hours, and (4) rewarding Downs-Haynes with a promotion
and raise two days after submitting the petition to the
company. See Dkt. 2 at 9-15. The alleged unlawful
activities began in the spring of 2017. The signatures were
gathered between June 28 and July 18, 2017. Dawn-Haynes
submitted the petition to AIM on July 21, 2017. AIM
determined that 142 employee signatures were valid, out of a
bargaining unit of 272, and, on July 24, 2017, notified the
Union that it was withdrawing recognition immediately based
on 142 signatures, which was a majority of the employees.
January 15, 2018, AIM responded to the petition. Dkt. 13. AIM
contends that the NLRB conducted a flawed investigation into
the alleged unfair labor practices and filed the
administrative complaint based solely on affidavits obtained
from Union stewards and supporters.
January 19, 2018, NLRB replied. Dkt. 28. On February 7, 2018,
the Court held a hearing on the petition.
10(j) permits a district court to grant relief “it
deems just and proper.” 29 U.S.C. § 160(j).
“To decide whether granting a request for interim
relief under Section 10(j) is ‘just and proper, '
district courts consider the traditional equitable criteria
used in deciding whether to grant a preliminary
injunction.” McDermott v. Ampersand Publ'g,
LLC, 593 F.3d 950, 957 (9th Cir. 2010). Thus, when the
NLRB seeks § 10(j) relief, it “must establish that
[it] is likely to succeed on the merits, that [it] is likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in [its] favor, and
that an injunction is in the public interest.”
Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20
(2008). “‘[S]erious questions going to the
merits' and a balance of hardships that tips sharply
towards the [NLRB] can support issuance of a preliminary
injunction, so long as the [NLRB] also shows that there is a
likelihood of irreparable harm and that the injunction is in
the public interest.” Alliance for the Wild Rockies
v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
cases, however, the NLRB “must establish that
irreparable harm is likely, not just possible, in order to
obtain a preliminary injunction.” Id. at 1131.
“[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
[NLRB's] remedial power.” Scott v. Stephen Dunn
& Assocs., 241 F.3d 652, 661 (9th Cir. 2001)
(internal quotation marks omitted), abrogated on other
grounds as recognized by McDermott, 593 F.3d at 957.
Likelihood of Success on the Merits
Ninth Circuit, the NLRB “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.'” Frankl v. HTH Corp., 650 F.3d
1334, 1356 (9th Cir. 2011) (quoting Miller v. Cal. Pac.
Med. Ctr., 19 F.3d 449, 460 (9th Cir.1994) (en banc)).
case, the NLRB's legal theory is that the Union's
loss of support was caused by AIM's unfair labor
practices. A union generally “enjoys a presumption that
its majority representative status continues.”
Bryan Mem'l Hosp. v. NLRB, 814 F.2d 1259, 1262
(8th Cir. 1987). This “presumption can only be rebutted
by a good faith belief of the employer, based on objective
factors, that the union has lost its majority status.”
NLRB v. Am. Linen Supply Co., 945 F.2d 1428, 1433
(8th Cir. 1991). The “employer is not permitted,
however, to rely on a union's loss of majority support
caused by the employer's own unfair labor
practices.” Radisson Plaza Minneapolis v.
NLRB, 987 F.2d 1376, 1383 (8th Cir. 1993). To determine
“whether a causal relationship exists between the
unremedied unfair labor practices and the subsequent
expression of employee disaffection with an incumbent union,
” the Board considers factors including:
(1) the length of time between the unfair labor practices and
the withdrawal of recognition; (2) the nature of the
violations, including the possibility of a detrimental or
lasting effect on employees; (3) the tendency of the
violations to cause employee disaffection; and (4) the effect
of the unlawful conduct on employees' morale,
organizational activities, and membership in the union.
In Re Miller Waste Mills, Inc., 334 N.L.R.B. 466,
468 (2001), enforced, 315 F.3d 951 (8th ...