On Friday, August 20, 2010, a District Court Judge for the Eastern District of California issued a preliminary injunction pursuant to Section 10(j) of the National Labor Relations Act. The order, in Garcia v. Sacramento Coca-Cola Bottling Co., 2:10-cv-2176 (Damrell, U.S.D.J.), requires the employer to recognize and bargain with Teamsters Local 150 pending the outcome of refusal to bargain charges filed at Region 20 of the NLRB.

The employer is a soft drink distribution franchisee. For over forty years, the production and maintenance employees were represented by an “in-house” union, the SCCBE. The employer and SCCBE were parties to a collective-bargaining agreement in effect from November 1, 2009 through October 31, 2013.   During early 2010, new officers of the union helped facilitate an affiliation with Local 150, which was apparently approved at a union meeting.

Subsequently, a significant number of employees protested the affiliation – including by signing a “disaffiliation petition” presented to the employer. The employer refused to recognize Local 150 and refused to hear grievances filed by Local 150. Accordingly, the union filed unfair labor practice charges alleging violations of Section 8(a)(1) & (5) of the Act. The Region issued a Complaint against the employer on or about June 20, 2010, and proceeded to file a petition in the District Court seeking injunctive relief under Section 10(j) of the Act.

To obtain interim injunctive relief under Section 10(j), the Board must demonstrate that it is likely to succeed on the merits, that irreparable harm is likely in the absence of preliminary relief, that the balance of equities tips in favor of such relief, and that an injunction is in the public interest. The Court’s decision to issue an injunction here applies this standard to the specific facts of the case before it – a mid-contract refusal to recognize a new union following an affiliation vote. But it restates a broad view of “irreparable harm” that future Courts might find equally applicable in “first contract” or organizing cases. Section 4 of the proposed but stalled Employee Free Choice Act (S. 560, H.R. 1409) would require Regional Offices to pursue injunctive relief in all organizing and “first contract” cases.   Likewise, without being prompted by legislative action, in 2006 and 2007, former General Counsel Ronald Meisburg issued memoranda to all Regional Offices urging them to consider pursuing 10(j) relief in more “first contract” cases. One might certainly expect that the current Board may be even more aggressive about doing so.

Paragraph 10 of the Regional Director’s Petition in the Sacramento Coca-Cola case describes the showing of “irreparable harm,” thus:

Upon information and belief, it is submitted that unless the aforesaid flagrant unfair labor practices are immediately enjoined and appropriate injunctive relief granted, Respondent’s violations of the Act will continue, with the result that enforcement of important provisions of the Act and of the public policy will be frustrated before Respondent can be placed under legal restraint through the administrative procedures set forth in the Act consisting of a Board Order and an Enforcement Decree of the United States Court of Appeal. It is likely that substantial and irreparable harm will result to Respondent’s employees and their statutorily protected right to organize unless the aforesaid unfair labor practices are immediately enjoined and appropriate relief granted. If it becomes necessary to seek enforcement by the Court of Appeals, it may be years before the unlawful conduct is restrained. Unless injunctive relief is immediately obtained, the effectiveness of the Board’s final order will likely be nullified, the administrative procedure rendered meaningless, and Respondent will continue in its above-described unlawful conduct during the pendency of the proceedings before the Board, with the result that, during this period, the rights of Respondent’s employees guaranteed and protected by Section 7 of the Act to join unions and bargain collectively in good faith through representatives of their own choosing will be frustrated and denied. Moreover, Respondent’s unlawful refusal to recognize and bargain with the Union will convey a message from Respondent to its employees that the Union is powerless to effectively represent them, and that the government is powerless to restrain such unlawful conduct. That impression will intensify as the underlying unfair labor practice proceeding takes its course if the requested interim injunctive relief is not granted. Further, while Respondent benefits from its unlawful refusal to recognize the Union pending Board litigation, the Unit employees are contemporaneously and irreparably suffering the loss of the benefits of collective bargaining and Union representation. That loss, which goes beyond wages to include such items as job security and safety and health conditions, and advocacy by a Union representative, cannot be made whole by a Board order in due course. Only by requiring Respondent to recognize and bargain with the Union in good faith as required by the Act can such irrevocable damage to the bargaining process and the employees’ Section 7 rights be prevented. Otherwise, Respondent’s unlawful conduct can result in permanent injury to the employees’ loyalties to the Union that the Board’s administrative order in due course will be unable to adequately remedy. Respondent will reap benefits from its unlawful conduct, all in disregard of the policies of the Act and the public interest.

The Region’s position makes no mention whatsoever of the existing contract or long-standing collective-bargaining relationship. The Board’s administrative process and Court of Appeals enforcement described is the exact same process that has long been the typical and accepted legal procedure available to the parties in all Board proceedings. The notion that the normal course of the Board’s and Courts’ procedures to enforce rights under the NLRA in itself satisfies the requisite showing of “irreparable harm”, goes a long way toward mandating preliminary injunctive relief in a much wider range of “refusal to bargain” cases.

Relying upon previous Ninth Circuit holdings, the Court here accepted the Board’s argument that declining to issue the injunction would allow the alleged unlawful conduct to “reach fruition and thereby render meaningless the Board’s remedial authority.” While the Order indicates reliance on the broader notions outlined in the Board’s petition, the Court also took care to identify that the increasing number of employees signing the “disaffiliation” petition as time passed provided proof of the “irreparable harm” against which the union needed protection -– rather than providing support for the employer’s claim that the employees did not want the be represented by Local 150 to begin with.

Accordingly, the Court granted the injunction, including the order to

recognize and bargain with the Union as the exclusive collective-bargaining representative of employees in the Unit, including processing grievances pursuant to the parties’ current collective-bargaining agreement….

The underlying Complaint is scheduled for a hearing before an Administrative Law Judge in October 2010.