                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 17 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CORNELE A. OVERSTREET, Regional                  No.   16-15172
Director of the Twenty-Eighth Region of
the National Labor Relations Board,              D.C. No. 2:15-cv-01785-DJH

              Petitioner-Appellee,
                                                 MEMORANDUM*
 v.

SHAMROCK FOODS COMPANY,

              Respondent-Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Diane J. Humetewa, District Judge, Presiding

                    Argued and Submitted September 15, 2016
                            San Francisco, California

Before: GOULD and BERZON, Circuit Judges, and TUNHEIM,** Chief District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
      Shamrock Foods appeals the district court’s grant of a temporary injunction

under Section 10(j) of the National Labor Relations Act (“NLRA”), 29 U.S.C.

§ 160(j). We affirm.

      1. As an initial matter, the portions of the temporary injunction related to the

discharge of Thomas Wallace are not moot, notwithstanding the settlement

agreement in which Wallace accepted a $214,000 payment in lieu of reinstatement,

and waived his right to reinstatement and to any other administrative remedy.

Claims are moot “[i]f there is no longer a possibility that [the litigant] can obtain

relief for his claim.” Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003) (quoting

Ruvalcaba v. City of L.A., 167 F.3d 514, 521 (9th Cir. 1999)).

      Here, the Regional Director’s claims with respect to Wallace’s discharge are

not moot. The National Labor Relations Board retains the authority to order

Wallace’s reinstatement and other related remedies. “[T]he Board alone is vested

with lawful discretion to determine whether a proceeding, when once instituted,

may be abandoned.” Indep. Stave Co., 287 N.L.R.B. 740, 741 (1987) (quoting

Robinson Freight Lines, 117 N.L.R.B. 1483, 1485 (1957)). Likewise, “the Board

has no statutory obligation to defer to private settlement agreements,” although it

“may defer in its discretion.” NLRB v. Int’l Bhd. of Elec. Workers, Local Union

112, 992 F.2d 990, 992 (9th Cir. 1993). Given that the settlement agreement


                                           2
between Shamrock Foods and Wallace does not deprive the Board of its authority

to order Wallace reinstated, and that “the underlying purpose of Section 10(j) is . . .

to preserve the Board’s remedial power while it processes the charge,” McDermott

v. Ampersand Publ’g., LLC, 593 F.3d 950, 957 (9th Cir. 2010) (internal quotations

omitted), the Regional Director’s petition for temporary relief with respect to

Wallace’s discharge is not moot.1

       2. We review the district court’s grant of injunctive relief pursuant to Section

10(j) of the NLRA for an abuse of discretion. McDermott, 593 F.3d at 957. “The

district court abuses its discretion if it relies on a clearly erroneous finding of fact

or an erroneous legal standard.” Small v. Operative Plasterers’ & Cement Masons’

Int’l Ass’n Local 200, 611 F.3d 483, 489 (9th Cir. 2010).

       The district court applied the correct legal standard to the temporary

injunction in this case, giving some deference to the Regional Director and

declining to apply the heightened standard announced in Overstreet v. United


       1
        We also note that, given “the nature of interim § 10(j) relief and of the
Board’s final remedial power,” often a “§ 10(j) remedy will be identical, or at least
very similar, to the Board’s final order.” Frankl v. HTH Corp., 650 F.3d 1334,
1366 (9th Cir. 2011), cert denied, 132 S. Ct. 1821 (2012). “Very often, the most
effective way to protect the Board’s ability to recreate [the] relationships [that
would exist had there been no unfair labor practice] and restore the status quo will
be for the court itself to order a return to the status quo.” Id.



                                             3
Brotherhood of Carpenters, Local Union No. 1506, 409 F.3d 1199, 1207, 1210-12

(9th Cir. 2005). The heightened standard applies when an injunction would create

“at least some risk that constitutionally protected speech will be enjoined,” in

which case “only a particularly strong showing of likely success, and of harm . . .

as well [will] suffice” to justify issuing the requested injunction. United Bhd. of

Carpenters, 409 F. 3d at 1208 n.13; see also Operative Plasterers’, 611 F.3d at

491; McDermott, 593 F.3d at 958.

      Here, the district court’s injunction implicates Shamrock Foods’s speech,

insofar as it prohibits interrogating employees about union sympathies, threatening

loss of benefits or wages or other reprisal, promising benefits in return for not

supporting the union, soliciting and promising to remedy employee grievances, and

directing employees to report union activity. But the injunction prohibits only

coercive speech, which is not protected by the First Amendment or the National

Labor Relations Act. See NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969).

“[A]n employer is free to communicate to his employees any of his general views

about unionism or any of his specific views about a particular union, [but only] so

long as the communications do not contain a ‘threat of reprisal or force or promise

of benefit.’” Id. (quoting 29 U.S.C. § 158(c)); see also Chamber of Commerce v.

Brown, 554 U.S. 60, 67 (2008) (noting that the Supreme Court has “recogniz[ed]


                                           4
the First Amendment right of employers to engage in noncoercive speech about

unionization” (emphasis added)). The injunction in this case does not prevent

Shamrock Foods from expressing its opinions regarding union representation, or

from otherwise engaging in noncoercive speech, and so it does not present a risk of

infringing Shamrock Foods’s rights under the First Amendment or Section 8(c) of

the NLRA.

      Applying the ordinary standard for granting a temporary injunction, the

district court did not abuse its discretion in finding that the Regional Director is

likely to succeed on the merits of his claim, that irreparable harm is likely without

preliminary relief, and that the balance of hardships and the public interest favor an

injunction. See Frankl, 650 F.3d at 1355 (holding that courts determine whether a

Section 10(j) injunction is “just and proper” by applying the traditional equitable

criteria used to decide whether to grant a preliminary injunction).

      First, the employee and employer affidavits, meeting transcripts, and

testimony before the administrative law judge (“ALJ”) support the district court’s

finding that the Regional Director is likely to succeed on the merits of his claims

that Shamrock Foods committed numerous unfair labor practices in violation of

Sections 8(a)(1) and 8(a)(3) of the NLRA. That is, the record shows a likelihood

of success on the merits with respect to claims that, on at least one occasion,


                                           5
Shamrock Foods unlawfully: threatened employees with loss of benefits and other

reprisal if they unionized; interrogated employees about union sympathies;

surveilled employees’ protected concerted activities; created the impression of

surveillance; granted employee benefits to influence union activity; asked

employees to disclose union activities of their colleagues; informed employees that

it would be futile for them to select the union; solicited grievances and promised to

correct them as a reward for not supporting the union; selectively enforced no-

distribution and no-solicitation rules by confiscating union literature; and

discriminated by discharging and disciplining union supporters.2, 3

      The district court also did not abuse its discretion in finding a likelihood of

irreparable harm absent preliminary relief. The record shows an observed drop-off

in union activity, as evidenced by a decline in the number of union authorization



      2
       Shamrock Foods is correct that before the ALJ the Regional Director
abandoned his claims with respect to some specific incidents, and that the ALJ
found some of the alleged incidents not to be unfair labor practices. But, the
Regional Director maintained at the hearing before the ALJ that Shamrock Foods
committed unfair labor practices of each type addressed in the injunction, and the
ALJ found at least one unfair labor practice in each category alleged.
      3
         The district court did not hold Shamrock Foods’s expression of anti-union
views likely to be an unfair labor practice, nor did the court enjoin such expression.
Instead, the district court held, inter alia, that Shamrock Foods likely committed an
unfair labor practice at a January 28, 2015 mandatory employee meeting by
threatening the loss of benefits.
                                           6
cards signed and in attendance at union organizing meetings, resulting from

Shamrock Foods’s cumulative efforts to deter unionization. Such diminished

support for a union can be evidence that irreparable harm is likely absent a

preliminary injunction. See Small v. Avanti Health Sys., LLC, 661 F.3d 1180, 1192

(9th Cir. 2011) (“[A] delay in bargaining weakens support for the union, and a

Board order cannot remedy this diminished level of support.”). Moreover, “the

discharge of active and open union supporters risks a serious adverse impact on

employee interest in unionization and can create irreparable harm to the collective

bargaining process.” Frankl, 650 F.3d at 1363 (quoting Pye v. Excel Case Ready,

238 F.3d 69, 74 (1st Cir. 2001)). Given the documented diminished support for the

union, and the allegedly discriminatory discharge of Wallace, the district court did

not abuse its discretion in finding irreparable harm likely, absent preliminary relief,

due to the cumulative effect of the alleged unfair labor practices.

      Finally, the district court did not abuse its discretion in finding that the

balance of hardships and the public interest favor an injunction. “[T]he District

Court’s determination that the Regional Director had shown likely irreparable harm

to the [union organizing campaign] meant that there was also considerable weight

on his side of the balance of the hardships.” Id. at 1365. Shamrock has not shown

any countervailing hardship, as the injunction does no more than require Shamrock


                                           7
to cease its coercive conduct and speech. Likewise, “the public interest is to ensure

that an unfair labor practice will not succeed because the Board takes too long to

investigate and adjudicate the charge.” Id. (quoting Miller v. Cal. Pac. Med. Ctr.,

19 F.3d 449, 460 (9th Cir.1994), abrogated on other grounds as recognized by

Frankl, 650 F.3d at 1355). The grant of a preliminary injunction serves the public

interest in this case by preventing Shamrock Foods from successfully undermining

the union organizing effort through potentially unlawful tactics.

       For these reasons, we affirm the district court’s temporary injunction order

in all respects.

       AFFIRMED.




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