Jill Coffman v. Queen of the Valley Med Center

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JILL HAWKEN COFFMAN, No. 17-17413

Regional Director of Region

20 of the National Labor D.C. No.

Relations Board, for and on 4:17-cv-05575-YGR

behalf of the NATIONAL

LABOR RELATIONS BOARD,

Petitioner-Appellee, OPINION

v.

QUEEN OF THE VALLEY

MEDICAL CENTER,

Respondent-Appellant.

Appeal from the United States District Court

for the Northern District of California

Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted June 14, 2018

San Francisco, California

Filed July 16, 2018

Before: Mary M. Schroeder and Ronald M. Gould, Circuit

Judges, and Miranda M. Du,* District Judge.

Opinion by Judge Schroeder

*

The Honorable Miranda M. Du, United States District Judge for the

District of Nevada, sitting by designation.

2 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

SUMMARY**

Labor Law / Preliminary Injunction

The panel affirmed the district court’s entry of a

preliminary injunction, pursuant to Section 10(j) of the

National Labor Relations Act (“NLRA”), requiring the

employer to engage in unconditional bargaining with a union.

The panel held that an employer cannot begin

unconditional bargaining and later withdraw recognition

because such actions interfere with the union’s collective

bargaining rights protected by the NLRA. The panel held that

the Regional Director of the National Labor Relations Board

had shown a sufficient likelihood of success in establishing

its underlying position that the employer recognized the union

and engaged in unconditional bargaining before withdrawing

recognition and refusing to bargain in violation of Section

8(a)(1) of the NLRA. The panel held that the Director

established a continuing threat of irreparable harm to the

union’s collective bargaining rights to support the

extraordinary remedy of injunctive relief. The panel also held

that the harm to the union outweighed the harm to the

employer. The panel further held that the district court did

not abuse its discretion in balancing the equities, and in

finding that injunctive relief in this case was in the public

interest.

The panel held that the Director submitted sufficient

evidence to establish a likelihood of success and irreparable

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 3

harm with regard to the union’s claim that the employer

discriminated against an employee for his union activity in

violation of Section 8(a)(1) and (3) of the NLRA.

COUNSEL

Ronald J. Holland (argued), Philip Shecter, and Ellen

Bronchetti, DLA Piper LLP, Menlo Park, California, for

Respondent-Appellant.

Rebecca J. Johnston (argued), Attorney; Richard J. Lussier,

Supervisory Attorney; Elinor L. Merberg, Assistant General

Counsel; Jayme L. Sophir, Associate General Counsel; Peter

B. Robb, General Counsel; National Labor Relations Board,

Washington, D.C.; for Petitioner-Appellee.

OPINION

SCHROEDER, Circuit Judge:

It is a well-settled principle of labor relations law that an

employer cannot start unconditional bargaining with a union

and then quit when negotiations do not go well. In this case,

a Regional Director (“Director”) of the National Labor

Relations Board (“Board”) believed the employer did just

that. The Director successfully applied for an injunction

pursuant to Section 10(j) of the National Labor Relations Act

(“NLRA”), 29 U.S.C. § 160(j), requiring the employer to

engage in unconditional bargaining. In this appeal from that

injunction, the employer contends the Director lacked a

sufficient likelihood of success in establishing its underlying

position that the employer recognized the union and engaged

4 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

in unconditional bargaining before withdrawing recognition

and refusing to bargain. According to the employer, it did

nothing more than bargain conditionally to preserve its right

to challenge the results of the union election.

The record shows that the employer had considerable

dealings with the union following the union’s certification,

including discussions that resulted in agreements over some

hours and working conditions, and that these negotiations

took place before the employer made any official challenge

to the certification. We therefore hold that the Director has

shown a sufficient likelihood of success in establishing a

withdrawal of recognition and refusal to bargain

unconditionally, as well as a continuing threat of irreparable

harm to the union’s collective bargaining rights, to support

the extraordinary remedy of injunctive relief. We affirm the

District Court’s entry of the preliminary injunction. We

vacate the stay previously entered by a motions panel of our

Court.

Background

I. Factual history

A. Employer’s withdrawal of union recognition

The employer in this case is Queen of the Valley Medical

Center (“QVMC”), which operates an acute-care medical

facility in Napa, California. The union is the National Union

of Healthcare Workers (“Union”). The employee bargaining

unit consists of nonprofessional and technical employees at

QVMC’s facility. In the mail ballot election held on

November 15, 2016, a majority of eligible bargaining-unit

employees voted by a wide margin for the Union’s

COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 5

representation. QVMC objected to the election results, but

the Director overruled those objections and, on December 22,

2016, certified the Union as the employees’ bargaining

representative.

QVMC then filed a request for review of the Union’s

certification with the Board on January 9, 2017, but the Board

denied that request on February 28, 2017. The first formal

communication from the employer to the Union of a refusal

to recognize the Union came weeks later, on March 16, 2017.

On that day, QVMC sent the Union a letter asserting that the

mail ballot election was flawed and demanding that the Union

“stipulate to a new in-person election.” If the Union refused,

QVMC stated, it would “engage in a ‘technical refusal to

bargain,’” by “formally notify[ing] the Union that [QVMC]

believes the unit certification was faulty and . . . refuse to

bargain with the Union so that [QVMC could] pursue its

review of the certification in the courts.” QVMC stated that

it would “discuss the terms of a collective bargaining

agreement [but] with the mutual understanding that it [would]

only take effect if and when all of [QVMC’s] appeals in court

are denied.”

This case is before our Court on an injunction because,

prior to the March 16 letter, QVMC had extensive discussions

with the Union about working conditions and schedules for

members of the bargaining unit. Before QVMC’s January 9

request for review of the Union’s certification, QVMC’s

Directors of Labor and Human Resources arranged a

meeting with the Union to negotiate the schedule and job

assignment of a bargaining-unit employee. During these

communications, QVMC’s agents did not indicate to the

Union that QVMC was bargaining conditionally by reserving

its right to contest the Union’s certification. The Director

6 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

therefore concluded injunctive relief would be appropriate

and the District Court agreed.

The record before the District Court reflects the extent of

the parties’ dealings with each other after QVMC’s request

for review was denied on February 28, 2017, but before

QVMC sent its “technical refusal to bargain” letter on March

16. QVMC provided information to the Union that was

relevant for the full collective bargaining agreement and

promised to respond further “as [data became] available.”

QVMC stated that it would respond to the Union’s proposed

dates for the full bargaining session as well. During the same

time period before March 16, QVMC proposed dates and

attempted to schedule a meeting with the Union regarding

bargaining-unit phlebotomists’ schedule changes. Also

during this time period, QVMC and the Union arranged for a

Union representative to attend a bargaining-unit employee’s

investigatory meeting. On March 2, the Union requested

information from QVMC regarding changes to the schedules

of bargaining-unit employees in the Sterile Processing

Department and asked QVMC to cease and desist from

implementing the changes until the parties could discuss the

changes. QVMC met with the Union and employees the

same day to address the proposed scheduling changes. At no

time during this period after certification and before March

16, did QVMC’s agents indicate or communicate to the

Union that QVMC was bargaining conditionally and

reserving a right to contest the Union’s certification.

QVMC’s delay in communicating its intention to contest

the Union’s certification resulted in a loss of Union support.

Following the Union’s certification in December 2016,

employees elected approximately thirty bargaining team

members to represent them in the full bargaining

COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 7

negotiations. From January through March 2017, the Union

held monthly bargaining team meetings at QVMC’s facility

and thirty or more unit members attended. After QVMC sent

its “technical refusal to bargain” letter in March 2017,

employee attendance at the bargaining team meetings fell to

fourteen employees in April, twelve employees in May, and

by November, only nine.

The employees who attended the meetings in April and

May, after QVMC sent the March 16 letter, expressed

frustration with the Union’s ineffectiveness at representing

them, and indicated that it was becoming harder to maintain

Union support. Employees informed the Union that they

feared retaliation and were not willing to “stick their necks

out” for the Union. Some unit members resigned their

bargaining team positions or quit their employment at

QVMC. Employees in several departments indicated that

QVMC’s hostility toward the Union created a tense work

environment, and some employees refused to participate in

Board proceedings out of fear of retaliation. Employees who

previously opposed QVMC’s unilateral changes later

expressed reluctance to, and that they perceived futility in,

fighting such changes given the Union’s perceived

ineffectiveness.

The record before the District Court also reflects that

following the March 16 letter, the Union’s representative was

prevented from accessing department break rooms, where she

previously had access, and she noticed an increase in QVMC

security guard presence around her. QVMC’s managers

prevented her from speaking with unit members as well, and

bargaining unit members expressed reluctance to speak with

her.

8 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

B. Employer’s discrimination against employee Arroyo

for union support

Even before the Union election in November 2016, things

did not go smoothly between the Union and QVMC. Before

the election, QVMC transferred a well-known Union

supporter, Miguel Arroyo, to a different shift at its facility,

even though Arroyo had worked with his wife in the same

department on the same shift for three years. Arroyo had

worn Union buttons and appeared on the Union’s flyers and

social media page. According to an affidavit submitted by a

QVMC employee, after discovering Arroyo’s photo on the

Union’s social media page, Arroyo’s supervisor wanted to

make Arroyo “hurt” for his Union activity and concluded that

changing Arroyo’s schedule would create transportation

issues for his family. The supervisor structured the shift

change so that it would not appear retaliatory and told Arroyo

that the change was based on QVMC’s policy that spouses

were not allowed to work the same shift in the same

department. QVMC had not, however, enforced its policy in

the past. The record reflects that Arroyo’s transfer occurred

a few days before the November 2016 Union election.

II. Procedural history

The Union filed a series of unfair labor practice charges

in early 2017, alleging that QVMC violated Section 8(a)(1),

(3), and (5) of the NLRA. See 29 U.S.C. § 158(a)(1), (3), (5).

The Union filed its first charge on January 20, 2017, and

amended it on February 1 and again on February 14, asserting

that QVMC discriminated against employees for supporting

the Union, made unlawful unilateral changes to employee

schedules and other working conditions, and failed to timely

provide the Union with relevant bargaining information.

COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 9

After QVMC’s March 16 “technical refusal to bargain” letter,

the Union filed a second charge on April 3, 2017. This

charge asserted that QVMC threatened to withdraw and then

withdrew recognition of the Union, threatened to stop and did

stop unconditional bargaining with the Union, and failed to

furnish the Union with relevant bargaining information. The

Union’s third and fourth charges on April 21, 2017, claimed

that, at an investigatory meeting, QVMC denied an

employee’s right to Union representation, and that QVMC

had retaliated and discriminated against employees for Union

activity, made unilateral changes to terms and conditions of

employment, and then, in March 2017, withdrew recognition

of the Union.

On the basis of the Union’s charges, the Director issued

an administrative complaint on May 31, 2017, and, after

receiving authorization from the Board’s General Counsel,

petitioned the District Court on September 26 for temporary

injunctive relief under Section 10(j) of the NLRA, id.

§ 160(j). The petition asked the District Court to order

QVMC to cease and desist from engaging in the alleged

unfair labor practices, restore the Union’s position to the

status quo prior to QVMC’s withdrawal of recognition, post

copies of the District Court’s order at QVMC’s facility, and

read the District Court’s order to employees. Along with the

Director’s petition for an injunction, the Director submitted

the administrative record, which included affidavits of

QVMC employees and Union representatives as well as e-

mails, letters, and agreements between QVMC and the Union.

The District Court granted the Director’s request for a

preliminary injunction on November 30, 2017. The District

Court found that the Director demonstrated a likelihood of

success on the merits of the claims that QVMC violated

10 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

Section 8(a)(1), (3), and (5) by refusing to bargain

unconditionally, interfering with employee rights, and

discouraging union membership. See id. § 158(a)(1), (3), (5).

The court explained that the Director presented persuasive

evidence that QVMC engaged in unconditional bargaining

with the Union after the Union election until QVMC’s letter

of March 16, and that QVMC subsequently withdrew its

recognition of the Union and refused to bargain

unconditionally in violation of Section 8(a)(1) and (5). See

id. § 158(a)(1), (5). The District Court also found that the

Director was likely to succeed on the claim of unlawful

discrimination against Arroyo, in violation of Section 8(a)(1)

and (3), because the Union’s evidence established a prima

facie case of discrimination and it was unlikely QVMC would

succeed in showing that it would have treated Arroyo the

same way absent his Union activity. See id. § 158(a)(1), (3).

The District Court further found that the Union faced a

likelihood of irreparable harm, because employee attendance

at Union meetings had fallen and employees feared retaliation

and hostility for their Union activity. What harm there may

have been to QVMC from being required to bargain with the

Union could not offset the Director’s showing of irreparable

harm to the Union from QVMC’s actions. Public interest

favored enjoining QVMC as well, according to the court,

because “injunctive relief in the context of an unlawful

withdrawal of recognition case is particularly appropriate.”

Coffman v. Queen of the Valley Med. Ctr., No. 17-cv-05575-

YGR , at 7 (N.D. Cal. Nov. 30, 2017) (order granting

preliminary injunction). The court squarely rejected

QVMC’s position that an injunction in this case would

unfairly insulate the Union’s certification from judicial

review, stating that “a technical refusal defense ‘does not

immunize the employer from injunctive relief . . . . [;

COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 11

e]xposure to an unfair labor charge and the possibility of

[Section 10(j)] injunctive relief is a risk the employer must

choose to bear when engaging in a technical refusal to

bargain.’” Id. (quoting Kendellen v. Interstate Waste Servs.

of N.J., No. CIV. 06-5694 (SRC), 2007 WL 121435, at *3

(D.N.J. Jan. 11, 2007)) (alterations in original).

On appeal, QVMC principally contends that the District

Court erred in finding that the Director is likely to succeed on

the refusal to bargain charge, because QVMC never

recognized the Union. QVMC asserts that it bargained

conditionally with the Union to challenge the Union’s

certification, and that any unfair labor practice QVMC

committed was necessary to preserve its right to challenge the

certification. QVMC asserts that the District Court’s

injunction is unfair because it requires unconditional

bargaining and results in QVMC’s waiver of the right to

challenge the Union’s certification. The Director, however,

contends that QVMC waived its challenge to the certification

by recognizing the Union and bargaining with it

unconditionally after the Union’s certification, and then later,

on March 16, unlawfully tried to withdraw that recognition.

The Director thus concludes that QVMC may no longer

challenge the Union’s certification.

As for the Arroyo discrimination claim, QVMC

challenges the evidentiary basis for the finding of

discrimination against Arroyo and contends that Arroyo

himself faces no likelihood of irreparable harm. The Director

responds that the evidence is sufficient and that she need not

show a likelihood of irreparable harm as to Arroyo

individually, apart from harm to the unit as a whole.

12 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

We have jurisdiction under 28 U.S.C. § 1292(a)(1), and

we affirm the District Court’s injunction in all respects.

Discussion

This case involves some of the most fundamental

provisions of the NLRA—Section 8(a)(1), (3), and (5). See

29 U.S.C. § 158(a)(1), (3), (5). Section 8(a)(5) is intended to

protect union activity and collective bargaining rights by

making it an unfair labor practice “to refuse to bargain

collectively with the representatives of [the] employees.” Id.

§ 158(a)(5). Section 8(a)(1) protects the rights of employees

to unionize by prohibiting employers from “interfer[ing] with

. . . employees in the exercise of the rights guaranteed” under

the NLRA, such as “the right to . . . join[] or assist labor

organizations [and] to bargain collectively through

representatives of their own choosing.” Id. §§ 157, 158(a)(1).

Section 8(a)(3) similarly prohibits employers from

“discriminat[ing] in regard to . . . any term or condition of

employment to . . . discourage membership in any labor

organization.” Id. § 158(a)(3).

Section 10(j) authorizes the Board to seek a preliminary

injunction in federal district court to enjoin an employer’s

unfair labor practice. Id. § 160(j). The district court may

grant “such temporary relief . . . as it deems just and proper”

under the NLRA. Id. Courts apply the preliminary injunction

standard set forth by the Supreme Court in Winter v. Natural

Resource Defense Council, Inc., 555 U.S. 7, 20 (2008). See

McDermott ex rel. NLRB v. Ampersand Publ’g, LLC,

593 F.3d 950, 957 (9th Cir. 2010). In Winter, the Supreme

Court held that “[a] plaintiff seeking a preliminary injunction

must establish [(1)] that he is likely to succeed on the merits,

[(2)] that he is likely to suffer irreparable harm in the absence

COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 13

of preliminary relief, [(3)] that the balance of equities tips in

his favor, and [(4)] that an injunction is in the public interest.”

555 U.S. at 20.

We review for abuse of discretion a district court’s grant

of injunctive relief. Small ex rel. NLRB v. Operative

Plasterers’ & Cement Masons’ Int’l Ass’n Local 200, AFL-

CIO, 611 F.3d 483, 489 (9th Cir. 2010). “The district court

abuses its discretion if it relies on a clearly erroneous finding

of fact or an erroneous legal standard.” Id.

I. Employer’s withdrawal of union recognition in violation

of Section 8(a)(1) and (5)

A. Success on the merits

To obtain injunctive relief, the Director must show a

likelihood of success on the merits, which we have held

involves showing a “probability that the Board will issue an

order determining that the unfair labor practices alleged by

the . . . Director occurred and that this Court would grant a

petition enforcing that order.” Frankl ex rel. NLRB v. HTH

Corp., 693 F.3d 1051, 1062 (9th Cir. 2012) (Frankl II)

(quoting Frankl ex rel. NLRB v. HTH Corp., 650 F.3d 1334,

1355 (9th Cir. 2011) (Frankl I)). The petitioner meets this

burden if it can “produc[e] some evidence to support the

unfair labor practice charge, together with an arguable legal

theory.” Id. (quoting Frankl I, 650 F.3d at 1356) (alteration

in original). Here, the Director alleges that QVMC engaged

in several unfair labor practices, including withdrawal of

recognition of the Union and refusal to bargain

unconditionally. The District Court held that the Director

presented persuasive evidence that QVMC bargained with the

14 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

Union after the election until March 16, 2017, when QVMC

unlawfully withdrew recognition.

Under the NLRA, employers and unions have a “mutual

obligation” to engage in unconditional collective bargaining,

which involves “meet[ing] at reasonable times and

confer[ring] in good faith with respect to wages, hours, and

other terms and conditions of employment.” 29 U.S.C.

§ 158(d); see also Terrace Gardens Plaza, Inc. v. NLRB,

91 F.3d 222, 225 (D.C. Cir. 1996). Board certification of a

union establishes the union as the collective bargaining

representative and creates a duty on the employer to bargain

with the representative. See Brooks v. NLRB, 348 U.S. 96,

98–99, 104 (1954); see also Technicolor Gov’t Servs., Inc. v.

NLRB, 739 F.2d 323, 327 (8th Cir. 1984).

An employer may not begin to bargain unconditionally

with a union and then later withdraw recognition and refuse

to bargain unconditionally. 29 U.S.C. § 158(a)(1), (5);

Schwarz Partners Packaging, LLC, 362 NLRB No. 138, 2015

WL 4179686, at *4 (June 26, 2015). Such a withdrawal of

recognition constitutes an unfair labor practice, which the

Board may seek to enjoin. 29 U.S.C §§ 158(a)(5), 160(j).

The question in this case is whether the Director has shown

a likelihood of success in establishing an unlawful withdrawal

of recognition. We must determine whether the employer’s

conduct after the certification constituted conditional

bargaining that would have preserved the employer’s

challenge to the Union’s certification, or whether the

employer’s conduct constituted unconditional bargaining that

waived the employer’s right to challenge the Union’s

certification. The District Court ruled that QVMC’s

communications with the Union before March 16, 2017,

demonstrated unconditional bargaining, which waived the

COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 15

certification challenge. The relevant authorities support that

conclusion.

Our sister circuits and the Board have considered cases

raising similar issues. We therefore draw upon their

decisions for guidance here. These authorities establish that

if an employer wishes to challenge a union’s certification, the

“employer must refuse to recognize [the] union immediately

after the [union] has been certified.” Technicolor Gov’t

Servs. Inc., 739 F.2d at 327. The Eighth Circuit in

Technicolor held that if the employer recognizes a union by

entering into negotiations with it, the employer waives its

objection that the union’s certification is invalid. Id. The

employer in Technicolor waived its challenge to the union’s

certification by entering into negotiations following the

union’s election and certification and only challenging the

certification for the first time as a collateral defense to an

unfair labor practice charge. Id.

The D.C. Circuit has similarly held that an employer can

reserve its right to challenge union certification by refusing

to bargain unconditionally. Terrace Gardens Plaza, Inc.,

91 F.3d at 226. The court explained that, if the employer

contests the certification, the union may file an unfair labor

practice charge of refusal to bargain. See Id. at 225. As an

affirmative defense to the charge, the employer may contend

the certification was invalid. Id. (citing Boire v. Greyhound

Corp., 376 U.S. 473, 477 (1964)). The D.C. Circuit

succinctly stated the principle that the employer “may

negotiate with, or challenge the certification of, the [u]nion;

it may not do both at once.” Id. Unless the challenge is

successful, however, the employer has been guilty of an

unfair labor practice. Id. at 226.

16 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

The D.C. Circuit in Terrace Gardens thus rejected the

employer’s position that, because it refused to bargain in

order to obtain a judicial forum to resolve its challenge to the

certification, it should under no circumstances be guilty of an

unfair labor practice. Id. at 225. The court’s response was

that the employer had to win the certification challenge in

order to defeat the unfair labor practice charge. Id. at 226.

To preserve its challenge to certification the employer must

make that challenge immediately after the certification. See

id. at 224–26.

The employer in this case argues it has similarly timely

reserved its challenge to certification. QVMC’s problem is

that according to the Director, rather than timely reserving its

right to challenge certification, QVMC first negotiated with

the Union and then withdrew recognition. An employer

cannot engage in unconditional bargaining and later withdraw

recognition.

Board authority emphasizes the importance of immediacy

in an employer’s refusal to bargain unconditionally and

illustrates conduct constituting unconditional bargaining. The

leading case is Fred’s Inc., where the day after certification

the employer refused to bargain with the union. 343 NLRB

138, 138 (2004). The Board held in Fred’s that the employer

never unconditionally bargained with the union, because the

employer “clearly indicated in its communications with the

General Counsel and the [u]nion its intention to test the

[u]nion’s certification.” Id. The challenge to the union’s

certification was therefore preserved.

From the above cases, two principles emerge with

relevance to this case. First, to preserve a challenge to the

certification, the employer must refuse to bargain

COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 17

immediately after the union’s certification. See Technicolor

Gov’t Servs. Inc., 739 F.2d at 327; Fred’s Inc., 343 NLRB at

139. Second, if the employer does not immediately refuse to

bargain, it waives its right to challenge the union’s

certification. Technicolor Gov’t Servs. Inc., 739 F.2d at 327;

see also Schwarz Partners Packaging, LLC, 2015 WL

4179686, at *3–4 (holding employer waived challenge to

union’s certification when employer met and bargained with

union over full collective bargaining agreement and agreed to

schedule new meetings).

Our Circuit’s case law is consistent with these principles,

because we have observed that an employer’s delay in

bargaining harms the union and the collective bargaining

process. As we stated in Small ex rel. NLRB v. Avanti Health

Sys., LLC, 661 F.3d 1180, 1192 (9th Cir. 2011), “a delay in

bargaining weakens support for the union.” Such delay

reduces the union’s bargaining power relative to the

employer’s. We recognized in Frankl I that such harm may

be irreparable; we said that “even if the Board subsequently

orders a bargaining remedy, the union is likely weakened in

the interim, and it will be difficult to recreate the original

status quo with the same relative position of the bargaining

parties.” 650 F.3d at 1363. Employees suffer from the

employer’s delay, and remedies other than injunctive relief

may be less than adequate. As we further recognized in

Frankl I, “the Board generally does not order retroactive

relief, such as back pay or damages, to rank-and-file

employees for the loss of economic benefits that might have

been obtained had the employer bargained in good faith.” Id.

These opinions buttress our conclusion that an employer

cannot begin unconditional bargaining and later withdraw

recognition. Such actions interfere with the union’s

collective bargaining rights protected by the NLRA.

18 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

Here, the Director has shown a likelihood of success in

establishing that QVMC engaged in just such proscribed

conduct. The record before the District Court shows that

QVMC took part in several bargaining meetings with the

Union, discussing specific terms and conditions of

employment, and provided information relevant for a

comprehensive collective bargaining agreement. These

discussions took place after certification and before any

refusal to bargain. The District Court concluded that QVMC

engaged in “unconditional bargaining which waived the

preservation of its certification challenge.” Coffman, No. 17-

cv-05575-YGR, at 3.

QVMC does not dispute that meetings with the Union

took place, but argues that they amounted to informational

sessions rather than bargaining. The leading Board case on

informational meetings is In re Terracon, Inc., 339 NLRB

221 (2003). There, the Board held that a meeting was for

informational purposes rather than for bargaining because the

employer only met with the union representatives once for a

brief period of time and never made any comments conceding

the union’s majority status or connoting an intent to recognize

the union. In re Terracon, Inc. 339 NLRB at 225. Specific

issues were never the subject of mutual discussion. During

the meeting, the employer stated that the specific union

demands “were unlikely to be a problem.” Id. (internal

quotation marks omitted). The Board concluded that the

employer was simply attempting to “educate itself about the

[u]nion’s purported purpose and to assess whether or not it

should grant recognition to the [u]nion.” Id.

Here, however, the record indicates the meetings between

the Union and QVMC were not mere informational sessions;

specific issues were discussed. For two and a half weeks,

COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 19

before sending its “technical refusal to bargain” letter,

QVMC representatives met with Union representatives and

discussed various issues, including employee schedule

changes and arrangement of a Union representative’s

presence at an employee’s investigatory meeting. QVMC

also provided information relevant to the parties’ full

collective bargaining agreement, promised to furnish more

information later, and agreed to schedule a meeting to

negotiate a comprehensive collective bargaining agreement.

QVMC was likely not, as the employer was in Terracon, still

“educat[ing] itself about the Union’s purported purpose”

during that time. See id.

Other Board decisions show that, when the employer

engages in bargaining discussions, it commits to negotiations

and thereby waives any challenge to certification. See Prof’l

Transp., Inc., 362 NLRB No. 60, 2015 WL 1510979, at *1–2

(Apr. 2, 2015) (holding employer waived challenge to union’s

certification when it held several bargaining sessions with

union after certification); In re Konig, 318 NLRB 901, 904

(1995) (holding employer’s conduct “amounted to a waiver

of its right to challenge the [union’s] certification,” because

after certification employer did not contest certification’s

validity “and proceeded instead, just 1 month later, to

recognize the [u]nion by engaging in contract negotiations

with it”).

The Director therefore presented evidence to establish

that QVMC engaged in unfair labor practices by recognizing

and bargaining unconditionally with the Union and later

unlawfully withdrawing recognition of the Union and

refusing to unconditionally bargain. The Director established

a likelihood of success on the merits.

20 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

B. Irreparable harm, balance of equities, and public

interest

The Director also provided sufficient evidence to

demonstrate a likelihood of irreparable harm due to QVMC’s

unfair labor practices. The Director’s evidence indicates

irreparable harm from dissipation of employee support for the

Union as well as employee fear of retaliation and

discrimination by the employer. See Avanti, 661 F.3d at

1192; Frankl I, 650 F.3d at 1363. The District Court

appropriately found that the Union had “offered sufficient

evidence of a likelihood of irreparable harm in the absence of

an injunction.” Coffman, No. 17-cv-05575-YGR, at 6.

The District Court further held that the harm to the Union

outweighed the harm to QVMC. QVMC contends that the

District Court erred in balancing the equities, because QVMC

will face significant hardship if forced to recognize and

bargain with the Union. QVMC also argues it will face

hardship in rescinding all unilateral changes, allowing the

Union access to its property, and forcing QVMC to read the

District Court’s order to its employees. The District Court

weighed the equities, finding that the preservation of the

status quo as it existed before QVMC’s unfair labor practices

outweighed any hardship QVMC might suffer if required to

bargain. See NLRB v. Gissel Packing Co., 395 U.S. 575, 612

(1969) (holding a bargaining order may be necessary “to re-

establish the conditions as they existed before the employer’s

unlawful campaign”). There was no abuse of discretion.

Finally, the District Court did not abuse its discretion in

finding that injunctive relief in this case is in the public

interest. We have previously stated that when the “Director

makes a strong showing of likelihood of success and of

COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 21

likelihood of irreparable harm, the Director will have

established that preliminary relief is in the public interest.”

Frankl I, 650 F.3d at 1365. We have seen that such a

showing has been made.

II. Employer’s discrimination against employee Arroyo for

Union support in violation of Section 8(a)(1) and (3)

The injunction required that Arroyo be reinstated.

QVMC argues that the Union failed to establish a likelihood

of success and irreparable harm with regard to the claim that

QVMC discriminated against Arroyo for his Union activity.

Under Section 8(a)(1) and (3) of the NLRA, an employer

commits an unfair labor practice if it interferes with or

discourages an employee’s right to join a labor union and

bargain collectively. 29 U.S.C. §§ 157, 158(a)(1), (3); Frankl

II, 693 F.3d at 1062. We held in Frankl II that an employer

discriminates against an employee under the NLRA “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.” 693 F.3d at 1062. To

establish that the conduct was a substantial or motivating

factor, the Director need only show that “the employee was

engaged in protected activity, the employer knew of such

activity, and the employer harbored anti-union animus.” Id.

After establishing these elements, we shift the burden to the

employer “to demonstrate that it would have taken the same

action regardless of the employee’s union activity.” Id. As

we stated in United Nurses Associations of California v.

NLRB, an employer cannot overcome this burden “where its

‘asserted reasons for a discharge are found to be pretextual.’”

871 F.3d 767, 779 (9th Cir. 2017) (quoting In re Stevens

Creek Chrysler Jeep Dodge, Inc., 357 NLRB 633, 637

(2011)).

22 COFFMAN V. QUEEN OF THE VALLEY MED. CTR.

Here, the Director submitted evidence sufficient to

establish a likelihood of success and irreparable harm for the

discrimination claim. Contrary to QVMC’s assertion, we

may consider the affidavits submitted by the Director as

evidence at the preliminary injunction stage. See Asseo v.

Pan Am. Grain Co., 805 F.2d 23, 26 (1st Cir. 1986)

(“Affidavits and other hearsay materials are often received in

preliminary injunction proceedings.”).

The affidavits show that QVMC’s employee Arroyo

engaged in protected activity by, among other things,

appearing in a pro-Union picture posted on the Union’s social

media page. QVMC knew of Arroyo’s Union support

through a manager who saw the post. The manager, shortly

after seeing the post and one week before the Union’s

election, conspired to make Arroyo “hurt” for his Union

activity by changing Arroyo’s schedule to create

transportation issues for his family and cause Arroyo to

receive less pay on the different shift. QVMC offered some

evidence of a non-discriminatory reason for the shift change,

i.e., its policy prohibiting relatives from working together in

the same department. However, the Director presented

evidence that QVMC had not enforced the policy in the past.

QVMC enforced its policy only after it learned of Arroyo’s

Union support, and only against Arroyo. This is sufficient to

establish a prima facie case of unlawful discrimination and

that QVMC’s asserted justification is pretextual. Thus, the

Director has shown a likelihood of success on the claim of

discrimination against Arroyo.

The Director also established a likelihood of irreparable

harm for the discrimination claim. Such harm includes

economic and non-economic benefits to employees. See

Avanti, 661 F.3d at 1191–92. As the Seventh Circuit has

COFFMAN V. QUEEN OF THE VALLEY MED. CTR. 23

recognized, if the Director presents evidence of an

employer’s “clear hostility toward the Union, as well as a

pattern of discrimination against employees active in the

Union,” the Director establishes a likelihood of irreparable

harm for a preliminary injunction. Lineback v. Spurlino

Materials, LLC, 546 F.3d 491, 501–02 (7th Cir. 2008). The

record here shows QVMC on several occasions engaged in

retaliatory and hostile acts against Union supporters. The

Union established a likelihood of irreparable harm for the

discrimination claim.

Conclusion

The District Court’s injunction is AFFIRMED. This

Court’s prior order staying the injunction pending appeal is

vacated. The mandate shall issue immediately.