In a April 30, 2014 General Counsel Memorandum, National Labor Relations Board (the “Board”) General Counsel Richard Griffin declared that his office would expand the pursuit of injunctions in federal court against employers in connection with union organizing and bargaining efforts. In particular, the Memorandum directed the Board’s regional offices to pursue aggressively § 10(j) injunctive relief in unfair labor practice charges involving, among other things, claims of employee terminations during campaigns for union recognition. On February 1, 2016, the United States District Court for the District Court agreed with the General Counsel’s position that an employee termination during a campaign (and other alleged violations of labor law) could extinguish the “spark to unionize,” thus rendering § 10(j) injunctive relief, including reinstatement of the terminated employee, appropriate.
In Oversteet v. Shamrock Foods Co., No. 2:15-cv-01785-DJH (D. Ariz. Feb. 1, 2016), the Board Regional Director petitioned for § 10(j) injunctive relief to stop the employer’s alleged unfair labor practices including:
[T]hreatening employees with adverse employment actions because of their support for the Union; interrogating employees about their protected activities; spying on its employees as they engage in protected activities and making employees believe that their protected activities are constantly under surveillance; soliciting grievances from employees and promising to correct those grievance in effort to undermine union support; instructing employees to ascertain and disclose employees’ sympathies for the Union; and confiscating employees’ union literature, and issuing discriminatory discipline to an [sic] vocal union supporter and discharging another prominent union supporter because of their activities protected under [the National Labor Relations Act], including their activities in support of the Union.
On the plethora of evidence (including audio and video recordings) submitted to the court, Judge Humetawa found that there was reasonable cause to believe that the Board would sustain the unfair labor practice allegations and that § 10(j) injunctive relief was necessary to prevent further unfair labor practices pending a decision from an administrative law judge. Although Judge Humetawa declined to summarize all of the evidence supporting the injunction, she specifically noted: 1) statements by the employer threatening its employees with loss of benefits if they voted for unionization (“[t]he slate is wiped clean on wages, the slate is wiped clean on benefits, the slate is wiped clean on working conditions”); 2) statements by the employer giving its employees the impression that their union-related activity was under surveillance (“we kind of have some ideas…of who’s out there”; “we know who they are”; “[w]e know they’ve been conducting meetings offsite here”; and 3) statements by the employer that the union campaign was being waged by disgruntled workers seeking to hurt the company.
Additionally, Judge Humetawa found that the evidence showed a likelihood of success on claims of retaliatory discharge of one employee and retaliatory discipline of another. The terminated employee was a vocal supporter of the union who attended union meetings and persuaded his father- and brother- in-law to sign authorization cards. During a company “town hall” meeting, the employee asked why, in light of the company’s earnings, the company could not make larger contributions to employees’ health savings accounts and restore an earlier health insurance plan. The employer terminated the employee one week after the “town hall,” citing his “belligerent and disrespectful” behavior at the meeting. Judge Humetawa, however, reviewed the audio recording and transcript of the “town hall” and found little evidence to support the employer’s stated reasons for termination. The court also cited evidence that the employer disciplined another employee and warned that he would be terminated if he did not cease advocating for the union.
Ultimately, the court concluded that the union would suffer irreparable harm if it did not grant injunctive relief. The record showed that interest in the union dropped significantly after the employer started conducting meetings and discharged an employee after he expressed pro-union sentiment. The court entered an injunction requiring the employer to, among other things, cease its unfair labor practices, to reinstate the terminated employee, and to post a copy of the court’s order in its facility.