United States District Court, D. Nevada
CORNELE A. OVERSTREET, Regional Director of the Twenty-Eighth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Plaintiff,
APEX LINEN SERVICE INC., Defendant.
ORDER GRANTING IN PART PETITION FOR TEMPORARY
INJUNCTION (ECF NO. 1)
P. GORDON, UNITED STATES DISTRICT JUDGE
Cornele Overstreet, Regional Director for the National Labor
Relations Board (NLRB or Board), filed a petition for a
temporary injunction against respondent Apex Linen Service,
Inc. under § 10(j) of the National Labor Relations Act
(NLRA). ECF No. 1. Apex operates a laundry business in Las
Vegas providing service for commercial entities like hotels
and restaurants. ECF Nos. 1-2 at 2; 29-1 at 30-31. It employs
engineers to maintain equipment. ECF Nos. 1-2 at 2; 29-1 at
34. On January 24, 2017, the International Union of Operating
Engineers Local 501, AFL-CIO petitioned for a vote to become
the exclusive bargaining representative for the engineers.
ECF No. 1-1 at 139. The vote was held on February 6, and the
engineers voted in favor of the union by a vote of 10 to 4.
Id. at 56, 104, 143; ECF No. 1-2 at 10. This was the
first time a union represented employees at Apex. ECF No.
29-1 at 41. The dispute in this case concerns events leading
up to and following the vote.
in February 2017 and through July 2017, the union filed
numerous charges with the NLRB alleging Apex had engaged in
unfair labor practices. The NLRB consolidated those charges
into a complaint against Apex. Apex filed an answer, and that
matter is proceeding before an administrative law judge
(ALJ), who will make recommendations to the Board.
meantime, NLRB Regional Director Overstreet petitions for
this court to enter a temporary injunction under § 10(j)
of the NLRA against Apex arising out of Apex's alleged
unfair labor practices. Section 10(j) provides:
The Board shall have power, upon issuance of a complaint as
provided in subsection (b) charging that any person has
engaged in or is engaging in an unfair labor practice, to
petition any United States district court, within any
district wherein the unfair labor practice in question is
alleged to have occurred or wherein such person resides or
transacts business, for appropriate temporary relief or
restraining order. Upon the filing of any such petition the
court shall cause notice thereof to be served upon such
person, and thereupon shall have jurisdiction to grant to the
Board such temporary relief or restraining order as it deems
just and proper.
29 U.S.C. § 160(j). In determining whether temporary
relief is just and proper under the circumstances, I
“consider the traditional equitable criteria used in
deciding whether to grant a preliminary injunction.”
Small v. Avanti Health Sys., LLC, 661 F.3d 1180,
1187 (9th Cir. 2011) (quotation omitted). Those criteria are:
(1) a likelihood of success on the merits, (2) a likelihood
of irreparable harm, (3) the balance of hardships favors the
plaintiff, and (4) an injunction is in the public interest.
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008). Alternatively, under the sliding scale approach,
the party seeking injunctive relief must demonstrate (1)
serious questions on the merits, (2) a likelihood of
irreparable harm, (3) the balance of hardships tips sharply
in the moving party's favor, and (4) an injunction is in
the public interest. All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
applying these criteria, I am cognizant that the availability
of injunctive relief in this context is designed “to
protect the integrity of the collective bargaining process
and to preserve the [NLRB's] remedial power while it
processes the charge.” Avanti Health Sys.,
LLC, 661 F.3d at 1187 (quotation omitted). The remedy is
meant to prevent someone from accomplishing an unlawful
objective based on the delay between the unfair labor
practice and final resolution of the complaint process.
See Miller for & on Behalf of N.L.R.B. v. Cal. Pac.
Med. Ctr., 19 F.3d 449, 455 n.3 (9th Cir. 1994) (en
fact that the NLRB exercised its discretion to seek a §
10(j) injunction does not mean I must defer to the Board in
deciding whether interim relief is appropriate. Small v.
Operative Plasterers' & Cement Masons'
Int'l Ass'n Local 200, AFL-CIO, 611 F.3d 483,
490 (9th Cir. 2010). However, I “should evaluate the
probabilities of the complaining party prevailing in light of
the fact that ultimately, the Board's determination on
the merits will be given considerable deference.”
Id. (quotation omitted).
Likelihood of Success on the Merits
a likelihood of success on the merits in a § 10(j)
proceeding, the Regional Director must show a
“probability that the Board will issue an order
determining that the unfair labor practices alleged by the
Regional Director occurred and that this Court would grant a
petition enforcing that order, if such enforcement were
sought.” Frankl ex rel. N.L.R.B. v. HTH Corp.,
693 F.3d 1051, 1062 (9th Cir. 2012) (quotation omitted). The
Regional Director meets this burden by making a
“threshold showing of likelihood of success by
producing some evidence to support the unfair labor practice
charge, together with an arguable legal theory.”
Avanti Health Sys., LLC, 661 F.3d at 1187 (quotation
omitted). “Conflicting evidence in the record does not
preclude the Regional Director from making the requisite
showing for a section 10(j) injunction.” HTH
Corp., 693 F.3d at 1063 (quotation omitted).
as here,  the Regional Director “seeks and
receives approval from the NLRB before filing a § 10(j)
petition, the Director is owed special deference because
likelihood of success is a function of the probability that
the Board will issue an order determining that the unfair
labor practices alleged by the Regional Director
occurred.” Avanti Health Sys., LLC, 661 F.3d
at 1187 (quotation omitted). “That the NLRB itself
decid[ed] to file a Section 10(j) petition might signal its
future decision on the merits, assuming the facts alleged in
the petition withstand examination at trial.”
Id. (quotation omitted).
8(a)(1) of the NLRA makes it an unfair labor practice for an
employer to “interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in section
157 of this title.” 29 U.S.C. § 158(a)(1). Section
157 gives employees “the right to self- organization,
to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection .
. . .” Id. § 157.
asserts that Apex violated this section through three sets of
acts: (1) Apex chief engineer Eugene Sharron interrogated
employees about their support for the union, stated he would
call employees to discover whether they supported the union,
informed employees Apex suspected certain employees supported
the union, and told employees the union would not do anything
for them except take their money; (2) Apex chief executive
officer and part owner Joseph Dramise told employees their
wages would be reduced and schedules would no longer be
honored if the union came in; and (3) Apex chief operating
officer and part owner Marty Martin (Marty) denied engineer
Adam Arellano (who participated in bringing the union into
Apex) his right to a union representative during an interview
that Arellano reasonably believed might result in discipline.
Sharron's Statements and Questioning of Employees
Apex learned of the union organizing effort, Marty sent
Sharron to find out if there was genuine interest amongst the
engineers in voting for the union. ECF No. 29-1 at 219-20. On
January 24, 2017, Sharron, who is responsible for supervising
the engineers, spoke to Apex engineer Joseph Servin.
Id. at 53, 367-68, 530-31. According to Servin,
Sharron asked him if he knew anything about the union forcing
its way into Apex. ECF Nos. 1-1 at 142; 29-1 at 530-31.
Fearing retaliation and possible termination before the union
election, Servin stated he did not know anything about it.
ECF Nos. 1-1 at 142; 29-1 at 531-32. According to Servin,
Sharron told him that if the union came in, it would do
nothing for him except take his money. ECF Nos. 1-1 at 142;
29-1 at 532. Sharron asked Servin if he knew how he would be
voting and Servin (inaccurately) said he did not know because
it was all news to him. ECF Nos. 1-1 at 142; 29-1 at 530-32.
next day, Sharron approached Arellano and asked if the
engineers wanted a union. ECF Nos. 1-1 at 149-50; 29-1 at
493. Arellano replied that he came from a union company, but
he did not say anything else. ECF Nos. 1-1 at 150; 29-1 at
493. Sharron responded that he came from a union company too
but that he did not want the union, that the union was trying
to force its way in, and that he was going to call everyone
to see if they wanted the union to represent them. ECF Nos.
1-1 at 150; 29-1 at 493. Sharron denies that he told Arellano
or Servin that he was going to call the other engineers, but
Sharron did call the other engineers, who all stated they
were going to vote no. ECF No. 29-1 at 368-70. Sharron
reported this information back to Marty. Id. at 370.
to Servin, between February 1st and 6th, Sharron approached
him and stated “they” suspected Arellano, Charles
Walker, and another employee named Rico were the three main
people behind the union organizing effort. ECF No. 1-1 at
143. Sharron testified at the ALJ proceedings that he
suspected Arellano was behind the union organizing effort and
that Arellano told him before the election that Arellano
supported the union. ECF No. 29-1 at 371. Although all of the
engineers told Sharron they were voting no, the engineers
voted in favor of the union.
has shown a likelihood of success on these charges. Marty
sent Sharron to investigate the union organizing effort, and
Sharron later stated “they” knew who was behind
it. The NLRB “has long held that, when, in comments to
its employees, an employer specifically names other employees
as having started a union movement or as being among the
union leaders, the employer unlawfully creates the
impression, in the minds of its employees, that he has been
engaged in surveillance of his employees' union
activities.” In Re Royal Manor Convalescent Hosp.,
Inc., 322 NLRB 354, 362 (1996).
Overstreet has shown a likelihood of success related to
Sharron's questioning of Servin and Arellano. An employer
has a First Amendment right to ask questions of and
communicate with its employees about union matters “so
long as the communications do not contain a threat of
reprisal or force or promise of benefit.” Westwood
Health Care Ctr., 330 NLRB 935, 947 (2000); see
also 29 U.S.C. § 158(c) (providing that
“[t]he expressing of any views, argument, or opinion .
. . shall not constitute or be evidence of an unfair labor
practice . . . if such expression contains no threat of
reprisal or force or promise of benefit”). To determine
the line between legitimate communications and unlawful
coercion, the NLRB asks “whether under all of the
circumstances the interrogation reasonably tends to restrain,
coerce, or interfere with rights guaranteed by the
Act.” Westwood Health Care Ctr., 330 NLRB at
948. Some factors that may be considered include (1) the
background of hostility toward the union (or lack thereof);
(2) the nature of the information sought; (3) the
questioner's identity; (4) the place, tone, duration,
purpose, and method of questioning, and (5) whether the
questioning is repeated. Id. These are not the only
factors to consider and the ultimate question is
“whether under all the circumstances the interrogation
reasonably tends to restrain, coerce, or interfere with
rights guaranteed by the Act.” Id.
is no evidence that anyone at Apex expressed hostility toward
the union before Sharron made his statements. However,
Sharron's statements themselves appear hostile because he
characterized it as the union “forcing” its way
in, told Servin the union would do nothing but take his
money, and told Arellano he did want the union and was going
to call other employees to see where they stood. Within a day
of the union's petition, Sharron had questioned two
different engineers and indicated he was going to question
all of them about their union views. Sharron was a
supervisory engineer and was sent by Marty to investigate the
union organizing effort. It is unclear from the record what
Sharron's tone was, but apparently both Servin and
Arellano felt intimidated enough to be circumspect in
response to Sharron's questions. Indeed, all of the
engineers denied they were going to vote for the union, even
though a majority of them later did. Overstreet thus has
presented some evidence of coercive questioning.
Overstreet presented evidence that Sharron commented that the
union would do nothing but take Servin's money. The NLRB
has held that “comments designed to impress on the
employees the futility of having selected the Union as their
collective-bargaining representative” violate §
8(a)(1). See Flamingo Hilton-Reno, Inc., 321 NLRB
409, 416 (1996). Consequently, Overstreet has shown a
likelihood of success on these allegations by presenting some
evidence and arguable legal theories.
Dramise's Statements to Servin and Arellano
week after Sharron spoke to Arellano and Servin about how
they were going to vote, Sharron approached Servin and said
that Dramise wanted to talk to Servin and Arellano. ECF No.
1-1 at 142; ECF No. 29-1 at 372 (Sharron testifying that
Dramise requested the meeting). Dramise, Sharron, Servin, and
Arellano met in the conference room. According to Servin,
Dramise stated that if the union came in, he would no longer
be able to honor contracts he had with the employees,
including shifts, days off, and benefits. ECF Nos. 1-1 at
142, 150; 29-1 at 496-97. Servin and Arellano were both hired
on the condition that they had day shifts and weekends off.
ECF No. 1-1 at 142-43. Sharron testified at the ALJ
proceeding that Dramise told Arellano and Servin that if the
union came in, there would be a new contract and Arellano and
Servin's contracts would be null and void. ECF No. 29-1
at 373. This was the first time Arellano had ever met with
Dramise even though he had been employed by Apex since 2011.
ECF No. 29-1 at 496-97, 515.
has shown a likelihood of success on this allegation. Three
different witnesses testified that Dramise stated that if the
union came in, he would no longer be able to honor contracts
he had with the employees, including shifts, days off, and
benefits. That suggested to Servin and Arellano that they
would lose benefits if they voted for the union. Threatening
loss of benefits if employees vote for the union interferes
with their rights to proceed collectively. See Longview
Fibre Paper & Packaging, Inc., 356 NLRB 796, 803
(2011). Overstreet thus has presented some evidence and an
arguable legal theory for this allegation.
Arellano's Request for Union Representation
February 13th, Marty called Arellano into a conference room.
ECF No. 1-1 at 159. Arellano sought to invoke his right to be
represented by a union member during the meeting, but Marty
responded that this right did not apply because Apex had
already made its decision, and Arellano was terminated.
Id. at 117, 159. Marty asked Arellano if he wanted
to make a written statement, but Arellano refused without a
union representative present. Id. at 117-18, 159.
Arellano was then escorted off the property. Id. at
N.L.R.B. v. J. Weingarten, Inc., employees have the
right under § 157 to have a union representative at any
interview the employee reasonably fears might result in
disciplinary action. 420 U.S. 251, 261 (1975). “[A]n
employee has no Section 7 right to the presence of his union
representative at a meeting with his employer held solely for
the purpose of informing the employee of, and acting upon, a
previously made disciplinary decision.” Baton Rouge
Water Works Co., 246 N.L.R.B. 995, 997 (1979).
But this exception itself has an exception:
if the employer engages in any conduct beyond merely
informing the employee of a previously made disciplinary
decision, the full panoply of protections accorded the
employee under Weingarten may be applicable. Thus,
for example, were the employer to inform the employee of a
disciplinary action and then seek facts or evidence in
support of that action . . ., such conduct would remove the
meeting from the narrow holding of the instant case, and the
employee's right to union representation would attach.
invoked his Weingarten rights and was denied.
Although Marty testified that he had already decided to
terminate Arellano, Marty also asked Arellano if he wanted to
make a written statement. Overstreet thus has presented some
evidence and an arguable legal theory that the meeting went
beyond merely informing Arellano of his termination, but
instead sought to obtain a written statement from him.
See El Paso Healthcare Sys., Ltd. d/b/a Las Palmas Med.
Ctr. & Nat'l Nurses Org. Comm. - Texas/NNU,
28-CA-23368, 2011 WL 4527336 (N.L.R.B. Sept. 29, 2011)
(“[T]he Board has held that where an employer informs
an employee of a disciplinary action and then questions the
employee to seek information to bolster that decision, the
employee's right to representation applies.”).
8(a)(3) provides that it is an unfair labor practice for an
employer “by discrimination in regard to . . . tenure
of employment . . . to encourage or discourage membership in
any labor organization.” 28 U.S.C. § 158(a)(3).
“An employer violates Section 8(a)(3) 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.”
HTH Corp., 693 F.3d at 1062. The Regional Director
bears the initial burden of “showing that the employee
was engaged in protected activity, the employer knew of such
activity, and the employer harbored anti-union animus.”
Id. If he does so, then “the burden shifts to
the employer to demonstrate that it would have taken the same
action regardless of the employee's union
activity.” Id. “An employer cannot prove
this affirmative defense where its asserted reasons for a
discharge are found to be pretextual.” United
Nurses Ass'ns of Cal. v. Nat'l Labor Relations
Bd., 871 F.3d 767, 779 (9th Cir. 2017) (quotation
has met his burden of showing a likelihood of success on the
claim that Apex fired Arellano in retaliation for his union
activities. Arellano was behind the initial unionization
effort. Sharron stated that Arellano was suspected to be a
main person behind it and that before the election, Arellano
told Sharron that he supported the union. Additionally,
Arellano wore a union button on the day of the election. ECF
No. 29-1 at 504. Arellano thus engaged in protected conduct
and Apex was aware of that conduct. There is some evidence
that Apex harbored anti-union animus, as discussed above with
respect to the statements made by Sharron and Dramise.
contends it had a legitimate reason to fire Arellano because
he encouraged another employee to make a false worker's
compensation claim. Overstreet has presented some evidence
that this reason is pretextual. Prior to the incident at
issue, Marty considered Arellano a good and talented
employee. Id. at 46. Arellano was fired despite
having no history of discipline and without Marty
interviewing either the complaining witness, Victoria
Hernandez, or Arellano. ECF No. 1-1 at 106, 108-11. Instead,
Marty took the word of Hernandez's supervisor, Cristina
Linares, who relayed Hernandez's allegations to Marty.
Id. at 107-08. Marty testified he did not speak to
Hernandez because she speaks only Spanish. ECF No. 29-1 at
62. But he could have interviewed Hernandez through an
reasonable fact finder could question why the employer would
not talk to the only two employees involved in the
conversation before deciding to terminate an employee who
otherwise had no disciplinary issues. Upon questioning at the
ALJ proceedings, Hernandez testified that her eye was not red
before she came to work, it became irritated two or three
hours after she started work, and once she informed Arellano
that she did not think her eye injury occurred at work, the
conversation ended. ECF No. 29-1 at 595-96, 605. Arellano
denies that he encouraged Hernandez to commit fraud. ECF No.
1-1 at 158. Thus, had Marty interviewed the employees, he
would have learned that Arellano did not continue to
encourage Hernandez to make a worker's compensation claim
even after learning that she did not believe the injury
occurred at work.
there is some evidence of shifting reasons for the firing.
Arellano was accused of sabotaging equipment and his
termination record states he was fired for
“insubordination, dishonesty, [and] willful or careless
destruction of company assets.” ECF No. 1-2 at 16.
Marty testified at the ALJ proceeding that Arellano was not
involved in damaging company equipment, that those
allegations had nothing to do with his termination, and that
the basis for the discharge was for allegedly encouraging the
false worker's compensation claim. ECF No. 1-1 at 108,
112-14. Finally, the proximity in time between the union vote
on February 6 and Arellano's firing on February 13
supports a retaliatory motive. Overstreet thus has presented
some evidence and an arguable legal theory for this charge.
was one of three individuals Sharron identified as being
behind the union organizing effort. Id. at 143.
Walker volunteered to observe the union election. ECF No. 1-2
at 3. On February 10, Marty told Ed Martin, the union
bargaining representative, that Apex was contemplating a
layoff because, among things,  it no longer needed a graveyard
shift. ECF No. 29-3 at 1. Marty identified potentially
affected engineers as Walker, Jaime Valdovimos Magana, and
Leonardo Porter. Id. at 1-2. On February 15, Sharron
told Walker he was being laid off. ECF No. 1-2 at 3.
According to Walker, during his termination meeting, Marty
stated that Apex “didn't want the Union in, but of
course that didn't happen.” Id. at
Walker avers that Marty said that the union had nothing to do
with why Walker's position was being eliminated and that