Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 1 of 30 1 2 3 4 5 6 7 8 9 Coreen Kopper California Bar No. 288940 National Labor Relations Board, Region 32 1301 Clay Street, Suite 300N Oakland, California 94612-5211 Telephone: (510) 671-3031 Coreen.Kopper@nlrb.gov Donal Criss Parker California Bar No. 142308 National Labor Relations Board, Region 32 1301 Clay Street, Suite 300N Oakland, California 94612-5211 Telephone: (510) 671-3035 Criss.Parker@nlrb.gov 10 11 Attorneys for Petitioner 12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA 13 14 15 16 VALERIE HARDY-MAHONEY, Regional Case Number Director of the Thirty-Second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board 17 18 19 20 Petitioner v. NEVADA GOLD MINES LLC DBA NEVADA GOLD MINES Respondent 21 22 23 24 25 and 3:20-cv-00331 Hearing Date: Hearing Time: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR INJUNCTION UNDER SECTION 10(j)OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED [29 U.S.C. SECTION 160(j)] NEWMONT USA LIMITED DBA NEWMONT MINING CORP Party-In-Interest 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR INJUNCTION UNDER SECTION 10(j)OF THE NATIONAL LABOR RELATIONS ACT, AS AMENDED [29 U.S.C. SECTION 160(j)] Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 2 of 30 1 TABLE OF CONTENTS 2 TABLE OF CONTENTS………………………………………………………………….i 3 TABLE OF AUTHORITIES……………………………………………………………...ii 4 I. STATEMENT OF THE CASE………………………………………………………..1 5 6 II. THE STANDARDS UNDER WHICH INJUNCTIVE RELIEF IS SOUGHT……….2 7 III. OVERVIEW OF THE FACTS………………………………………………………..3 8 A. The Union Represented Employees For Over 50 Years………………………3 9 10 B. Respondent is a Single Employer with Newmont and It Repeatedly Promised to Continue to Recognize and Bargain with the Union for Months…………………………………………………………………………3 11 12 13 14 C. Respondent Withdrew Recognition From the Union, Repudiated the CBA, and Made Unilateral Changes to Unit Employees’ Working Conditions……………………………………………………………………..4 IV. ARGUMENT – INTERIM RELIEF IS “JUST AND PROPER”……………………10 15 A. Petitioner Has a Strong Likelihood of Success on the Merits………………..10 16 17 18 19 20 1. As a single employer of the bargaining unit with Newmont, Respondent was required to recognize the Union and adopt the CBA, even after the lease period………………………..……...11 2. Respondent unlawfully withdrew recognition from the Union, repudiated the CBA, and unilaterally changed unit employees’ working conditions…………………………………………………15 21 22 23 24 B. Interim Relief is Just and Proper to Prevent Irreparable Harm to Employees’ Statutory Rights and to Protect the Efficacy of the Board’s Final Order………………………………………………………………..….18 V. CONCLUSION………………………………………………………………………24 25 26 27 28 i Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 3 of 30 1 TABLE OF AUTHORITIES 2 Federal Cases 3 Ad-Art, Inc., 290 NLRB 590 (1988)........................................................................................................... 14 Aguayo v. South Coast Refuse Corp., 1999 WL 547861 (C.D. Cal. 1999) ....................................................................................... 21 Alliance for the Wild Rockies v. Cotrell, 632 F.3d 1127 (9th Cir. 2011) ............................................................................................. 2, 3 AM Property Holding Corp., 365 NLRB No. 162, slip op. at 6 (Dec. 15, 2017)............................................................. 7, 16 Asseo v. Centro Medico del Turabo, 133 LRRM 2722 (D. P.R. 1989) ........................................................................................... 22 Asseo v. Centro Medico del Turbado, Inc., 900 F.2d 445 (1st Cir. 1990) ........................................................................................... 22, 24 Bloedorn v. Francisco Foods, Inc., 276 F.3d 270 (7th Cir. 2001) ................................................................................................. 22 Brown v. Pacific Tel. & Tel., 218 F.2d 542 (9th Cir. 1955) ................................................................................................. 19 California Pacific Med. Center v. NLRB, 87 F.3d 304 (9th Cir. 1996) ......................................................................................... 7, 15, 21 Children's Hospital of San Francisco, 312 NLRB 920 (1993)........................................................................................................... 21 Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30 (2d Cir. 2010) ...................................................................................................... 3 Coffman v. Queen of the Valley Medical Center, 895 F.3d 717 (9th Cir. 2018) ........................................................................................... 19, 21 Cook County School Bus, Inc., 333 NLRB 647 (2001)........................................................................................................... 16 East Bay Automotive Council v. NLRB, 483 F.3d 628 (9th Cir. 2007) ................................................................................................. 21 El Torito-La Fiesta Restaurants, Inc. v. NLRB, 929 F.2d 490 (9th Cir. 1991) ................................................................................................. 16 Emsing’s Supermarket, Inc., 284 NLRB 302 (1987)........................................................................................................... 13 Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987) ................................................................................................................ 19 Fibreboard Paper Products Corp v. NLRB, 379 U.S. 203 (1964) .............................................................................................................. 24 Ford Motor Co. v. NLRB, 441 U.S. 488 (1979) .............................................................................................................. 24 Frankl v. HTH Corp., 693 F.3d 1051 (9th Cir. 2012) ......................................................................................... 15, 22 Frankl v. HTH Corp., 650 F.3d 1334 (9th Cir. 2011) ........................................................................................ Passim Franks Bros. Co. v. NLRB, 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 4 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 321 U.S. 702 (1944) .............................................................................................................. 19 Holly Farms Corp., 311 NLRB 273 (1993)........................................................................................................... 16 Hooks v. Ozburn-Hessey Logistics, LLC, 775 F. Supp. 2d 1029 (W.D. Tenn. 2011) ............................................................................. 23 Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047 (2d Cir. 1980) ................................................................................................ 23 Kiewit Sons' Co., 206 NLRB 562 (1973)........................................................................................................... 14 Kreisberg v. Healthbridge Mgmt., LLC, 732 F.3d 131 (2d Cir. 2013) .................................................................................................. 21 Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001)........................................................................................................... 15 Local Joint Executive Bd. of Las Vegas v. NLRB, 540 F.3d 1072 (9th Cir. 2008) ............................................................................................... 17 Louisiana-Pacific Corp. v. NLRB, 858 F.2d 576 (9th Cir. 1988) ................................................................................................. 19 May Dept. Stores Co. v. NLRB, 326 U.S. 376 (1945) .............................................................................................................. 21 Miller v. California Pacific Medical Center, 19 F.3d 449,fn.3 (9th Cir. 1994) (en banc ......................................................................... 2, 10 NLRB v. American Natl. Ins. Co., 343 U.S. 395 (1952) .............................................................................................................. 19 NLRB v. Big Bear Supermarkets No. 3, 640 F.2d 924 (9th Cir. 1980) ........................................................................................... 11, 12 NLRB v. C & C Plywood Corp., 385 U.S. 421 (1967) .............................................................................................................. 18 NLRB v. Carson Cable TV, 795 F.2d 879 (9th Cir. 1986) ........................................................................................... 12, 13 NLRB v. Katz, 369 U.S. 736 (1962) .............................................................................................................. 21 NLRB v. Mrs. Fay's Pies, 341 F.2d 489 (9th Cir. 1965) ................................................................................................. 19 NLRB v. Phelps Dodge Corporation, 313 U.S. 177 (1941) .............................................................................................................. 23 NLRB v. San Luis Trucking, Inc., 479 Fed. Appx. 743 (9th Cir. 2012) ...................................................................................... 14 Norelli v. HTH Corp., 699 F. Supp. 2d 1176 (D. Haw. 2010) .................................................................................. 21 Overstreet v. Apex Linen Service, Inc., 2018 WL 832851 (D. Nev. 2018) ......................................................................................... 19 Overstreet v. Thomas Davis Medical Centers, P.C., 9 F.Supp.2d 1162 (D. Ariz. 1997) ......................................................................................... 23 Pathology Institute, 320 NLRB 1050 (1996)......................................................................................................... 12 Paulsen v. PrimeFlight Aviation Servs., Inc., iii Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 5 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 718 F. App’x 42 (2d Cir. 2017)............................................................................................. 23 Paulsen v. Remington Lodging & Hospitality, LLC, 773 F.3d 462 (2d Cir. 2014) .................................................................................................. 24 Raymond Interior Systems, 367 NLRB No. 124, slip op. at 9 (May 14, 2019) ................................................................. 16 RBE Electronics of S.D., Inc., 320 NLRB 80 (1995)............................................................................................................. 14 Ryder Integrated Logistics, Inc., 329 NLRB 1493 (1999)......................................................................................................... 15 Sakrete of Northern California, Inc. v. NLRB, 332 F.2d 902 (9th Cir. 1964) ................................................................................................. 12 Scott v. Stephen Dunn & Associates, 241 F.3d 652 (9th Cir. 2001) .......................................................................................... Passim Seeler v. The Trading Port, Inc., 517 F.2d 33 (2d Cir. 1975) .............................................................................................. 23, 24 Small v. Avanti Health Systems, LLC, 661 F.3d 1180 (9th Cir. 2011) ........................................................................................ Passim Sonic Knitting Industries, 228 NLRB 1319 (1977)........................................................................................................... 8 Towne Ford Sales, 270 NLRB 311 (1984)........................................................................................................... 16 TransMontaigne, Inc., 337 NLRB 262 (2001)........................................................................................................... 17 United Hospitals, Inc., 249 NLRB 562 (1980)............................................................................................................. 8 Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) .............................................................................................................. 11 Vance v. NLRB, 71 F.3d 486 (4th Cir. 1995) ................................................................................................... 13 Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) .................................................................................................................... 2 Woolwich, Inc., 185 NLRB 783 (1970)............................................................................................................. 8 21 Statutes 22 23 24 25 26 27 28 29 U.S.C. Section 160(j) .................................................................................................... 1, 5, 2 29 U.S.C. § 151 .................................................................................................................... 1, 18 29 U.S.C. § 157 ........................................................................................................................ 18 29 U.S.C. §§ 158(a)(1) ............................................................................................................... 1 29 U.S.C. § 158(a)(5) ............................................................................................... 1, 10, 15, 18 Hist. 414, 433, 433 ..................................................................................................................... 2 Other Authorities S. Rep. No. 105 .......................................................................................................................... 2 iv Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 6 of 30 1 I. STATEMENT OF THE CASE 2 This proceeding is before the United States District Court for the District of Nevada (the 3 Court) on a Petition for a Temporary Injunction filed pursuant to the provisions of Section 10(j) 4 5 [29 U.S.C. § 160(j) (2012)] of the National Labor Relations Act, as amended [29 U.S.C. § 151 et 6 seq. (2012)], (the Act). Section 10(j) of the Act 1 empowers the Court to grant a temporary 7 injunction order that is just and proper against Nevada Gold Mines LLC (NGM or Respondent), 8 pending final disposition of the National Labor Relations Board’s Consolidated Complaint 9 issued in its Case 32-CA-25409 and 32-CA-256917. 2 10 11 Such legal restraint is necessary now to prevent the irreparable harm likely to result from 12 Respondent’s ongoing unlawful conduct, chiefly its decision to cease recognizing the 13 International Union of Operating Engineers, Local 3 (Union), the chosen representative of 14 roughly 1350 of its employees for the past 50 years, repudiating the collective-bargaining 15 16 17 agreement (CBA) in effect, and making unilateral changes to terms and conditions of employment in violation of Section 8(a)(1) and (5) of the Act. [29 U.S.C. §§ 158(a)(1) and (5)]. 18 19 1 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. 20 21 22 23 24 25 26 27 28 Section 10(j) (29 U.S.C. § 160(j)) provides: The Consolidated Complaint also alleges that Respondent refused to provide information to the Union; coerced and threatened employees about their Union and protected activities; and, constructively discharged employees by offering them employment conditioned on the relinquishment of their Section 7 rights to their chosen collective-bargaining representative. However, temporary injunctive relief is only being sought on the duty to bargain violations. [Exhibit No. 4 at p. 34 of the Index of Exhibits to the Petition] 2 Page 1 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 7 of 30 1 2 An administrative Board hearing on the allegations in the Consolidated Complaint is scheduled on July 27, 2020, but the matter will likely not conclude for a period of a year or more. 3 Avoidance of irreparable harm attendant to such delay is the purpose of Section 10(j). 4 II. 5 THE STANDARDS UNDER WHICH INJUNCTIVE RELIEF IS SOUGHT 6 Section 10(j) of the Act authorizes United States district courts to grant temporary 7 injunctions that are “just and proper” pending the Board's resolution of unfair labor practice 8 proceedings. 29 U.S.C. § 160(j). Congress recognized that the Board’s administrative 9 proceedings are often protracted. In certain instances, absent interim relief, a respondent could 10 11 accomplish its unlawful objective before a final Board order issues. 3 12 In the Ninth Circuit, district courts rely on traditional equitable principles to determine 13 whether interim relief is appropriate. 4 Thus, to obtain a preliminary injunction, the Regional 14 Director must establish (1) a likelihood of success on the merits, (2) a likelihood of irreparable 15 16 harm in the absence of preliminary relief, (3) that the balance of equities tips in the Board’s 17 favor, and (4) that an injunction is in the public interest. 5 These elements are evaluated on a 18 “sliding scale” in which the required showing of likelihood of success decreases as the showing 19 of irreparable harm increases. 6 When “the balance of hardships tips sharply” in the Director's 20 favor, the Director may establish only that “serious questions going to the merits” exist so long 21 22 as there is a likelihood of irreparable harm and the injunction is in the public interest. 7 The 23 24 25 26 27 28 3 See Scott v. Stephen Dunn & Associates, 241 F.3d 652, 659 (9th Cir. 2001); Miller v. California Pacific Medical Center, 19 F.3d 449, 455 fn.3 (9th Cir. 1994) (en banc) (quoting S. Rep. No. 105, 80th Cong., 1st Sess. at 8, 27 reprinted in 1 Leg. Hist. 414, 433 (LMRA 1947)). 4 Small v. Avanti Health Systems, LLC, 661 F.3d 1180 (9th Cir. 2011); Frankl v. HTH Corp.(Frankl I), 650 F.3d 1334, 1355 (9th Cir. 2011), cert. denied, 566 U.S. 904 (2012). 5 Frankl I, 650 F.3d at 1355 (citing Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 19 (2008)). 6 See Alliance for the Wild Rockies v. Cotrell, 632 F.3d 1127, 1131-1134 (9th Cir. 2011). 7 Frankl I, 650 F.3d at 1355 (quoting Alliance for the Wild Rockies, 632 F.3d at 1135). Page 2 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 8 of 30 1 2 “serious questions” standard permits the district court to grant an injunction where it “cannot determine with certainty that the [Director] is more likely than not to prevail on the merits of the 3 underlying claims, but where the costs outweigh the benefits of not granting the injunction.”8 4 5 Applying these standards, the requested injunctive relief is just and proper and should be granted. III. 6 7 OVERVIEW OF FACTS A. The Union Represented Employees For Over 50 Years 8 For over 50 years, the Union represented a unit of approximately 1350 production and 9 maintenance employees at mines in Nevada’s Carlin trend, owned and operated by Newmont 10 11 USA Limited dba Newmont Mining Corp (Newmont), including its flagship mine, Leeville. 12 App 1 Ex 1 p. 3 9; App 2 Ex 5 p. 70; App 2 Ex 6 p. 79. Newmont is a Party-In-Interest in this 13 case because Respondent is a single employer with Newmont, as alleged in the underlying Board 14 cases. As a single employer, Respondent must maintain the same duty to recognize and bargain 15 16 with the Union as Newmont, including continuing to honor the collective-bargaining agreement 17 executed in February 2019 by the Union and Newmont, which expires on March 31, 2022 18 (CBA). App 1 Ex 1 p. 3, 15. Historically, Newmont’s mining facilities outside of the Carlin trend 19 have been staffed by employees not represented by a union. 20 B. Respondent is a Single Employer with Newmont and It Repeatedly Promised to Continue to Recognize and Bargain with the Union For Months 21 22 Around March 12, 2019, Newmont and Barrick Gold Corporation (Barrick)—a separate 23 entity which owned and operated mines in the Carlin trend and elsewhere in Nevada—entered 24 25 into an agreement to form a joint venture (NGM) that would operate Newmont’s and Barrick’s 26 8 27 28 Alliance for the Wild Rockies, 632 F.3d at 1133 (quoting Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010)). 9 Reference to the Appendix of Index of Exhibits is “App” followed by the Appendix number. Reference to the Exhibit is “Ex” followed by the exhibit number. Reference to the page number of the exhibit is “p” followed by the page number. Page 3 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 9 of 30 1 2 Nevada mines as a single operation. App 4 Ex 1 p. 2. Their March 2019 filing with the Securities and Exchange Commission (SEC) states that the CBA between the Union and Newmont would 3 remain in full force and the joint venture would recognize the Union as the unit employees’ 4 5 6 bargaining representative. App 4 Ex 1 p. 125. It also shows Newmont’s common ownership and financial control of NGM as more fully detailed below. 7 8 On March 13, 2019, Hiliary Wilson, Newmont’s Director of Employee and Labor Relations and NGM’s General Counsel, informed the Union of the joint venture and stated that 9 the new company would recognize the Union and adopt the terms of the CBA. App 1 Ex 1 p. 4. 10 11 The parties confirmed that the joint venture would adopt the CBA and Wilson provided some 12 requested information regarding the management of the new enterprise. App 1 Ex 1 p. 4-5, 58- 13 59; App 3 Ex 19 p. 77-78. 14 Around May 10, 2019, unit employees received letters welcoming them to the new 15 16 company as of July 1, 2019, stating that NGM had agreed to adopt the CBA and recognize the 17 Union. App 1 Ex 1 p. 60-61; App 2 Ex 11 p. 181; App 2 Ex 12 p. 194; App 2 Ex 13 p. 217; 18 App 3 Ex 17 p. 68. In meetings with former Barrick and Newmont human resources personnel, 19 unit employees were also required to sign an acknowledgement of NGM’s newly-adopted 20 employee standards that clarified that “in the event of any conflict or inconsistency” between the 21 22 23 standards and the CBA, “the terms of the CBA will prevail.” App 1 Ex 1 p. 62; App 2 Ex 7 p. 104; App 2 Ex 8 p. 119, 121-122; App 2 Ex 9 p. 135-136; App 2 Ex 10 p. 157-158. 24 C. Respondent Withdrew Recognition From the Union, Repudiated the CBA, and Made Unilateral Changes to Unit Employees’ Working Conditions 25 26 Without notice to the Union, Newmont and NGM drafted an employee lease agreement, 27 effective July 1 through December 31, 2019, whereby Newmont agreed to lease all of its 28 employees to NGM to allow NGM time to establish payroll and other employment related Page 4 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 10 of 30 1 2 functions (App 1 Ex 1 p. 190-206; App 2 Ex 6 p. 88; App 2 Ex 8 p. 118; App 2 Ex 12 p. 196-197), and NGM agreed to reimburse Newmont for salaries and all other related 3 employment costs. App 1 Ex 1 p. 196-198 The lease agreement recognized the Union as the 4 5 collective-bargaining representative of the unit employees and stated that the CBA would remain 6 in effect. App 1 Ex 1 p. 193. The agreement further stated that NGM would have sole authority 7 and discretion, subject to the terms and conditions of the CBA, to manage all aspects of the 8 employment of the leased employees, including modifying employees’ duties, employment 9 practices and policies; hiring or terminating employees; and, managing any decisions or 10 11 negotiations with regard to the unit employees or any claims brought by the Union or individual 12 employees. App 1 Ex 1 p. 194. In a section concerning notices to company representatives, 13 Wilson was identified as NGM’s General Counsel. App 1 Ex 1 p. 203. Blake Rhodes 10 signed 14 the lease agreement on behalf of both companies—as Newmont’s Senior Vice President of 15 16 Corporate Development and as an officer of NGM. App 1 Ex 1 p. 205. Further, a July 1, 2019 17 transition services agreement, describes other financial and operational services that Newmont 18 agrees to provide to NGM, including any services “essential to the operation” that were 19 inadvertently omitted from the agreement. App 1 Ex 1 p. 136-142. 20 On July 1, 2019, NGM assumed operation of the Carlin trend mines. 11 Most of the 21 22 approximately 1350 unit employees’ day-to-day working conditions remained the same. The unit 23 employees reported to the same worksites, performed the same work, used the same equipment, 24 and were supervised by the same individuals. App 2 Ex 5 p. 72, 74, 77; App 2 Ex 6 p. 81-86, 88; 25 26 27 28 10 Similarly, Rhodes signed a July 1, 2019 contribution agreement as Vice President of Newmont and several subsidiaries, as well as an officer of Respondent. App 1 Ex 1 p. 174-175. 11 On July 5, 2019, the parties amended their SEC filing, without notice to the Union, to state that Newmont would comply with the 2019 CBA but that, at the end of the lease period, NGM “shall be permitted to assess its own legal obligations and goals with respect to any obligations that it may have, if any, under the 2019 Agreement or other applicable law.” App 5 Ex 1 p. 16-17. Page 5 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 11 of 30 1 App 2 Ex 7 p. 94-100; App 2 Ex 8 p. 116, 122; App 2 Ex 10 p. 151-155; App 2 Ex 11 2 p. 169-172; App 2 Ex 12 p. 197; App 2 Ex 14 p. 234-238. 12 Unit employees continued to receive 3 safety training separately from former Barrick employees. App 2 Ex 10 p. 164-165; App 2 Ex 13 4 5 p. 226-227; App 2 Ex 14 p. 234-238. 13 Supervisors also remained employees of Newmont during 6 the lease period and reported to two NGM general managers. App 2 Ex 6 p. 81; App 2 Ex 9 p. 7 145; App 2 Ex 11 p. 169-169. During the lease period, supervisors and managers repeatedly 8 assured unit employees that they would continue to be represented by their Union and covered 9 by the terms of the CBA. App 2 Ex 7 p. 105-106; App 2 Ex 8 p. 118; App 2 Ex 9 p. 142; App 2 10 11 Ex 11 p. 182; App 2 Ex 12 p. 198; App 3 Ex 16 p. 34. 12 After providing notice and meeting with the Union, on July 12, 2019, Wilson—whose 13 email signature now stated that her job title was General Counsel of NGM—wrote to the Union 14 stating that “management” would close the Leeville employee parking lot, impacting unit 15 16 employees’ ability to drive to the worksite. App 3 Ex 20 p. 81-82; App 3 Ex 21 p. 84-85. On July 17 18, 2019, Anthony Hall, writing as outside counsel for Newmont, asserted that under the CBA, 18 Newmont had the exclusive right to close the Leeville employee parking lot. App 3 Ex 22 p. 88- 19 89. On July 19, 2019, the Union filed a grievance pursuant to the parties’ CBA. App 1 Ex 1 p. 8. 20 On July 30, 2019, Hall sent the Union a proposed memorandum of understanding (MOU) 21 22 App 3 Ex 23 p. 91-93. Based on communications between the parties, the Union understood that 23 24 25 26 27 28 However, about 7 unit truck drivers per shift were directed to travel to mining facilities formerly owned by Barrick, to transport ore to mills formerly owned by Newmont. App 2 Ex 7 p. 102-103; App 2 Ex 8 p. 117. Likewise, some former-Barrick truck drivers also traveled between properties to transport raw materials to a former Barrick roaster and, later, to former Newmont leach pads. App 2 Ex 7 p. 103; App 2 Ex 8 p. 125-126; App 2 Ex 9 p. 144. Several unit mechanics were also directed to repair and fuel a former Newmont hydraulic shovel moved to former Barrick property. App 2 Ex 7 p. 102-103; App 2 Ex 8 p. 117. 13 Only a handful of unit employees received site-specific hazard training required to travel to or perform work at any former Barrick properties. (NM 8-10; JF 7; KB 18) 12 Page 6 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 12 of 30 1 2 the purpose of the MOU was to clarify the rights and responsibilities of the parties now that there was limited interchange between unit employees and unrepresented Barrick employees. App 1 3 Ex 1 p. 7; App 1 Ex 2 p. 222-224; App 2 Ex 5 p. 78. The MOU—ultimately signed by Newmont 4 5 and the Union on September 9, 2019—states that the legal rights of unit employees and the 6 unrepresented Barrick employees would remain as they existed before the lease period. App 1 7 Ex 1 p. 7, 68-69. Additionally, the MOU acknowledges that, during the lease period, the Union 8 would be recognized as the bargaining representative of the Newmont employees, but NGM 9 would not have a duty to recognize the Union or apply the CBA to the former Barrick 10 11 employees. App 1 Ex 1 p. 7, 68-69. Furthermore, the MOU states the status quo would be 12 maintained, regardless of the degree of employee interchange, and the MOU would prevent any 13 argument of accretion, 14 alter-ego or other successorship principle from being argued or 14 established based on facts occurring during the lease period. App 1 Ex 1 p. 68. 15 In late October 2019, Wilson provided the Union with requested information related to 16 17 changes in unit employees’ 2020 health benefits. App 1 Ex 1 p. 8-9, 70-71. The Union 18 exchanged emails with Wilson and Hall regarding the changes and requested to meet. App 1 19 Ex 1 p. 70-74; App 1 Ex 2 p. 235-237. On November 1, 2019, Hall confirmed that he was 20 available to meet on November 15, 2019 and stated that the parties also needed to discuss unit 21 22 employee benefits after the end of the employee lease period. App 1 Ex 2 p. 236-237. 23 The parties held a series of meetings and conference calls between November 15 and 24 December 13, 2019. App 1 Ex 1 p. 9; App 2 Ex 3 p. 5-8; App 1 Ex 2 p. 224. In addition to Hall, 25 26 27 28 14 Under Board law, the party asserting accretion must show that the functional integration between operations is “so substantial as to negate separate identity of the single-facility unit.” See AM Property Holding Corp., 365 NLRB No. 162, slip op. at 6 (Dec. 15, 2017). See also California Pacific Med. Center v. NLRB, 87 F.3d 304, 309 (9th Cir. 1996) (enforcing finding of single-facility unit following hospital merger where other facility had no history of representation among its nurses and nurses at two facilities had limited interchange). Page 7 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 13 of 30 1 2 Lisa Boman, formerly Newmont’s Senior Human Resources Business Partner and now serving as head of NGM’s Business Human Resources department, represented management. App 1 3 Ex 1 p. 9. In the course of these discussions, Hall asserted for the first time that NGM was not a 4 5 successor to Newmont because NGM was an entirely new entity and it did not intend to adopt 6 the CBA. App 1 Ex 1 p. 9. NGM pressed the Union to hold an election among the unit 7 employees and a larger group of former Barrick employees performing work at former Barrick 8 owned properties to vote on whether to be represented by the Union. 15 App 1 Ex 1 p. 9; App 1 9 Ex 1 p. 225-226. The Union argued that NGM was Newmont’s successor and therefore must 10 11 maintain the status quo. App 1 Ex 1 p. 10. On November 29, 2019, Boman asserted, without 12 evidence, that the former Newmont and former Barrick Carlin trend operations were inextricably 13 intertwined and offered the Union the option to either agree to an election by December 23, 14 2019—the date that NGM now planned to become the direct employer of all Newmont unit 15 16 17 employees—or in February 2020 but, in the interim, NGM would not recognize the Union or follow the terms of the CBA. App 1 Ex 1 p. 75-76. 18 19 In early December 2019, Union representatives went to an employee parking lot where they typically interacted with unit employees and were confronted by security guards who 20 ordered them to leave the property. App 2 Ex 1 p. 6-7; App 3 Ex 1 p. 38-39; App 2 Ex 12 p. 20821 22 209. The Union representatives left after local law enforcement arrived. App 2 Ex 12 p. 209. 23 24 25 26 27 28 15 NGM’s attempt to hold an election in a broader unit was the subject of a February 6, 2020 petition, which the Regional Director dismissed on February 13, 2020, and is currently pending on NGM’s request for review before the Board. Such an election would be unlawful as the Union never sought to represent employees in the unit in which NGM seeks an election and NGM failed to establish that the joint venture resulted in a merged unit or otherwise rendered the historical unit no longer appropriate. See United Hospitals, Inc., 249 NLRB 562 (1980); Sonic Knitting Industries, 228 NLRB 1319 (1977); and Woolwich, Inc., 185 NLRB 783 (1970). Page 8 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 14 of 30 1 2 On December 3, 2019, the Union wrote Wilson requesting information about the “merger” between Newmont and Barrick and to bargain over the effects of the merger. App 1 3 Ex 1 p. 77-79. The Union received some information from a new attorney representing 4 5 Newmont, Seth Borden. App 1 Ex 1 p. 80-82, 176-185. However, Hall—now stating that he 6 represented NGM—wrote that NGM would not respond to the Union’s request since it was not a 7 successor to Newmont. App 1 Ex 2 p. 242-244. Following the parties’ last call on December 13, 8 2019, NGM also refused to meet with the Union unless it agreed to an election in a bargaining 9 unit that combined both former Newmont and Barrick employees. App 1 Ex 1 p. SF 13; App 2 10 11 Ex 3 p. 10. 12 Beginning in November 2019, NGM began to distribute offer letters to unit employees 13 which informed them that they would now be at-will employees. App 1 Ex 1 p. 83-84; App 2 14 Ex 11 p. 182-183. Unit employees were told that they must sign and return the letters or they 15 16 would no longer be employed after December 23, 2019. App 2 Ex 5 p. 75; App 2 Ex 8 p. 124; 17 App 2 Ex 9 p. 137; App 2 Ex 10 p. 160-161; App 2 Ex 11 p. 182-183; App 2 Ex 12 p. 198. Unit 18 employees were also informed, for the first time, that NGM would not recognize the Union or 19 the CBA. App 2 Ex 5 p. 75; App 2 Ex 10 p. 160-161; App 2 Ex 11 p. 182-183. After December 20 23, 2019, NGM no longer contributed to the unit employees’ pension plan or followed other 21 22 terms of the CBA, including seniority provisions, paid time off, or overtime pay. App 2 Ex 3 p. 23 11-12; App 2 Ex 6 p. 90-91; App 2 Ex 10 p. 164; App 2 Ex 13 p. 227; App 2 Ex 14 p. 242-243. 24 NGM also refused to process grievances or meet with the Union. App 1 Ex 1 p. 14; App 2 Ex 3 25 p. 11-12. 26 The change to at-will employment and the loss of their Union representation left 27 28 employees feeling shocked and betrayed, creating a “general sense of fear” in the workforce. Page 9 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 15 of 30 1 2 App 2 Ex 5 p. 75-77; App 2 Ex 7 p. 106, 108-109; App 2 Ex 12 p. 199. In the words of one employee, “I’m scared shitless… and I’m a steward for crying out loud.” App 2 Ex 5 p. 78. 3 Employees are “really afraid they’re going to start targeting the Union people” (App 2 Ex 5 p. 4 5 78) and many fear that their jobs are “now very much at stake.” App 2 Ex 10 p. 163. This has not 6 only chilled employees in the exercise of their rights (App 2 Ex 9 p. 140-141), but it has also left 7 the Union in a vulnerable position. Employees now believe the Union betrayed them by assuring 8 them that they’d continue to have the protection of the CBA. App 2 Ex 5 p. 78. The loss of the 9 pension plan has created anxiety among employees, especially those who have invested decades 10 11 of their life working for Newmont expecting to have their pension intact. App 2 Ex 6 p. 90. One 12 employee nearing retirement has lost the equivalent of $600 per month. App 2 Ex 7 p. 108. 13 Now that Newmont and Barrick formed NGM, job opportunities for terminated 14 employees are severely limited. App 3 Ex 15 p. 23. “[I]f you lose employment with NGM, you 15 16 17 18 19 20 have no other options.” App 2 Ex 10 p. 165. Since “95% of all jobs are related to NGM,” the loss of job protection “is going to be devastating to our community.” App 2 Ex 10 p. 163. IV. ARGUMENT – INTERIM RELIEF IS “JUST AND PROPER” A. Petitioner Has a Strong Likelihood of Success on the Merits Petitioner has a strong likelihood of proving that Respondent, as a single employer with 21 Newmont, unlawfully withdrew recognition from the Union, repudiated the CBA, and 22 23 unilaterally changed bargaining unit employees’ working conditions in violation of Section 24 8(a)(5) of the Act. 29 U.S.C. § 158(a)(5). Likelihood of success in a Section 10(j) proceeding “is 25 a function of the probability that the Board will issue an order determining that the unfair labor 26 practices alleged by the Regional Director occurred and that the Ninth Circuit would grant a 27 28 Page 10 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 16 of 30 1 2 petition enforcing that order.” 16 In evaluating this prong, “it is necessary to factor in the district court’s lack of jurisdiction over unfair labor practices, and the deference accorded to NLRB 3 determinations by the courts of appeals.” 17 Petitioner need not prove Respondent committed the 4 5 6 alleged unfair labor practices. 18 Such a standard would “improperly equat[e] ‘likelihood of success’ with ‘success.’” 19 7 8 Rather, Petitioner makes a threshold showing of likelihood of success by producing “some evidence” in support of the unfair labor practice charge “together with an arguable legal 9 theory.” 20 Therefore, the district court should sustain the Petitioner’s factual allegations if they 10 11 are “within the range of rationality” and, “[e]ven on an issue of law, the district court should be 12 hospitable to the views of the [Regional Director], however novel.” 21 “A conflict in the evidence 13 does not preclude the Court from granting the requested Section 10(j) injunctive relief.” 22 14 1. As a single employer of the bargaining unit with Newmont, Respondent was required to recognize the Union and adopt the CBA, even after the lease period 15 16 There is a high likelihood that Petitioner will succeed in obtaining a Board order finding 17 that Respondent was a single employer with Newmont from at least July 1 until December 23, 18 19 2019, when Newmont leased all unit employees to Respondent. The Board examines several 20 factors to determine single employer: (1) common ownership or financial control; (2) 21 interrelation of operations; (3) common management; and, (4) centralized control of labor 22 23 24 16 25 26 27 28 Frankl I, 650 F.3d at 1355; see also Small, 661 F.3d at 1187. Frankl I, 650 F.3d at 1356 (quoting Miller, 19 F.3d at 460). 18 See Scott, 241 F.3d at 662. 19 Univ. of Tex. v. Camenisch, 451 U.S. 390, 394 (1981). 20 Small, 661 F.3d at 1187 (quoting Frankl I, 650 F.3d at 1356); see also Scott, 241 F.3d at 662 (the Regional Director need only show “a better than negligible chance of success”). 21 Frankl I, 650 F.3d at 1356. 22 Scott, 241 F.3d at 662. 17 Page 11 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 17 of 30 1 2 relations; placing less emphasis on common ownership in comparison to other factors. 23 Singleemployer status is also “characterized as an absence of an arm’s-length relationship found among 3 unintegrated companies.” 24 Here, Newmont and Respondent clearly meet all of the Board’s 4 5 criteria to establish single-employer status during the lease period. 6 There is ample evidence of common ownership and financial control. As a managing 7 partner, Newmont representatives share financial control of Respondent 25 and share management 8 at the most senior level of the organization. 26 Newmont owns a 38.5% interest in NGM and 9 appoints two—currently Newmont’s CEO and Executive Vice President—of the five managers 10 11 serving on NGM’s Board of Directors. App 4 Ex 1 p. 2. The Board is responsible for managerial 12 and financial oversight including approving or modifying all programs, budgets, funding plans, 13 life of mine plans, contracts in excess of $25 million, or the initiation of any dispute resolution 14 with third parties. App 4 Ex 1 p. 110-113. Certain decisions—such as restructuring, dissolving, 15 16 or merging the company—require unanimous Board consent and, in the event of deadlock, 17 Newmont and Barrick representatives form a dispute committee to reach a resolution. App 4 Ex 18 1 p. 113. Moreover, while Newmont’s highest-ranking executives—its CEO and Executive Vice 19 President—simultaneously served on Respondent’s Board of Directors, another senior executive, 20 21 22 23 23 24 25 26 27 28 See, e.g., NLRB v. Big Bear Supermarkets No. 3, 640 F.2d 924, 928 (9th Cir. 1980), cert. denied, 449 U.S. 919 (1980). 24 See id. at 928. 25 See Sakrete of Northern California, Inc. v. NLRB, 332 F.2d 902, 907 (9th Cir. 1964) (recognizing common financial control as synonymous with common ownership in the Board’s single employer analysis), cert. denied, 379 U.S. 961 (1965); NLRB v. Carson Cable TV, 795 F.2d 879, 881 (9th Cir. 1986) (acknowledging that the Board’s analysis places less emphasis on evidence of common ownership in comparison to other factors). 26 See Sakrete, 332 F.2d at 907 (concluding that “overall [shared] control of critical matters at the policy level” demonstrates common management). Page 12 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 18 of 30 1 2 Blake Rhodes, served as a Vice President of Newmont and as an officer of Respondent.27 Furthermore, the agreements executed by Newmont and Respondent gave Respondent full 3 managerial authority over all of Newmont’s leased employees including hiring, assigning job 4 5 duties or discipline, exercising lay-offs, and modifying employment practices or policies. In 6 addition, the companies shared management responsibility on the local level, with Newmont 7 supervisors reporting to Respondent’s general managers who oversaw both halves of the 8 combined Newmont-Barrick workforce. 9 Moreover, Newmont’s and Respondent’s operations were closely interrelated during the 10 11 lease period supporting a finding of single employer. As demonstrated by the employee lease 12 agreement, transition services agreement, and other corporate documentation, Respondent was 13 entirely dependent on Newmont to provide all labor for the former-Newmont facilities, as well as 14 a host of other financial and operational services including any “essential to the operation.” App 15 16 17 1 Ex 1 p. 136-142. Without Newmont, Respondent would not have had the workforce or the support to operate a large percentage of its highly-profitable, newly-acquired facilities. 28 18 In addition, Respondent’s and Newmont’s centralized control of labor relations 19 demonstrate single employer. 29 In the agreements entered into by the two companies, 20 Respondent explicitly asserted control over employment policies and practices, as well as over 21 22 23 any claims brought by the Union or individual employees. Respondent exercised its control over labor relations as early as May 10, 2019, by issuing the “welcome” letters to unit employees, 24 27 25 26 27 28 See Pathology Institute, 320 NLRB 1050, 1061-1062 (1996) (finding overlap between highranking corporate officers supports single employer finding), enforced mem. 116 F.3d 482 (9th Cir. 1997), cert. denied, 522 U.S. 1028 (1997). 28 Vance v. NLRB, 71 F.3d 486, 493 (4th Cir. 1995) (operating both companies “in such a manner that the exigencies of one would be met by the other” supports a finding of single employer) (citing Emsing’s Supermarket, Inc., 284 NLRB 302, 304 (1987)). 29 Carson Cable TV, 795 F.2d at 881 (the Board places particular emphasis on centralized control of labor relations when evaluating a single employer claim). Page 13 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 19 of 30 1 2 which stated that Respondent would recognize the Union and adopt the CBA and holding meetings with employees with Barrick and Newmont human resources personnel. Moreover, 3 labor representatives acted on behalf of both companies simultaneously. Indeed, Wilson 4 5 represented Respondent’s position as well as Newmont’s when she informed the Union of the 6 joint venture and gave assurances that Respondent would adopt the contract and did not provide 7 any information to the contrary when she responded to the Union’s information request. While 8 Wilson’s email signature indicated that she assumed her new position as Respondent’s General 9 Counsel around July 12, 2019, Wilson explicitly spoke on behalf of “management” for both 10 11 entities. Likewise, Hall, while stating in written correspondence in July 2019 that he represented 12 Newmont, then represented Respondent in November 2019 asserting that it had no obligation to 13 recognize the Union and the CBA. Newmont’s human resources’ department—whose employees 14 and supervisors were also leased to Respondent until they became directly employed by 15 16 Respondent in December 2019—processed Union grievances subject to Respondent’s control of 17 labor relations. Finally, Boman moved over from Newmont’s human resources department to 18 Respondent’s during the lease period and announced Respondent’s withdrawal of recognition in 19 writing to the Union on November 29, 2019. 20 As such, the relationship between Respondent and Newmont during the lease period 21 22 meets all of the Board’s criteria for establishing single-employer status and demonstrates that the 23 companies lacked an arm’s-length relationship, with both entities working in concert to form and 24 operate the joint venture, manage the unit employees, and represent their mutual interests’ vis-a- 25 vis the Union. Thus, as a single employer of the bargaining unit with Newmont, Respondent had 26 27 28 Page 14 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 20 of 30 1 an obligation to recognize the Union and adopt the CBA, both during the lease period and when 2 Respondent became the sole employer of the workforce on December 23, 2019. 30 3 2. Respondent unlawfully withdrew recognition from the Union, repudiated the CBA, and unilaterally changed unit employees’ working conditions 4 5 There is a high likelihood that Petitioner will succeed in convincing the Board that 6 Respondent violated Section 8(a)(5) of the Act [29 U.S.C. § 158(a)(5)] by withdrawing 7 8 recognition from the Union, repudiating the CBA, and unilaterally changing employees’ terms 9 and conditions of employment. 31 10 11 When Respondent withdrew recognition from the Union there was no “actual loss” of majority support as required under Board law. Moreover, Respondent cannot establish that the 12 13 Union lost its majority status by claiming that the historic bargaining unit is no longer 14 appropriate, and was instead “accreted” 32 into the larger unrepresented former Barrick 15 workforce. 33 Historically distinct units do not lose their identity merely due to the presence of a 16 17 18 19 20 21 22 23 24 25 26 27 28 30 See Ad-Art, Inc., 290 NLRB 590, 604 (1988) (“A company which has not agreed to be bound by the collective-bargaining contract of another company may nevertheless be held to that contract … if it may be said to constitute a single employer with that company”), quoting Kiewit Sons' Co., 206 NLRB 562, 562 (1973); see also NLRB v. San Luis Trucking, Inc., 479 Fed. Appx. 743, 744-45 (9th Cir. 2012) (affirming that single employer was responsible for bargaining with union over decisions affecting unit employees) (citing RBE Electronics of S.D., Inc., 320 NLRB 80, 80-81 (1995)). 31 See Levitz Furniture Co. of the Pacific, 333 NLRB 717, 723-725 (2001) (holding that an employer must show an actual loss of majority support to lawfully withdraw recognition); Frankl v. HTH Corp. (Frankl II), 693 F.3d 1051, 1060 (9th Cir. 2012) (employer failed to show actual loss of majority support under Levitz). 32 See Ryder Integrated Logistics, Inc., 329 NLRB 1493, 1499 (1999) (accretion involves a factintensive balancing of multiple factors, including: bargaining history; functional integration of operations; types of work, skills, and education of employees; common control of labor relations; interchange between the two groups of employees; common day-to-day supervision; and physical or geographic proximity). 33 Likewise, Respondent’s February 6, 2020 petition for an election was dismissed because it failed to establish that the preexisting Newmont unit was no longer appropriate and it failed to show that the Union made requests to be recognized as the representative of the broader unit. Page 15 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 21 of 30 1 2 joint venture, and the requisite analysis is wholly reliant on the facts. 34 Apart from limited interchange of surface equipment, raw materials, and a small number of employees, the 3 operations have not been functionally integrated. 35 In addition, Respondent cannot rely on 4 5 evidence of changed conditions that resulted from its own unlawful unilateral changes to 6 employees’ working conditions. 36 Regardless, the vast majority of the 1350 employees in the 7 historical bargaining unit have continued to work—without any commingling with former 8 Barrick employees—under substantially unchanged working conditions, working at the same 9 former Newmont locations, with the same tools and equipment, reporting to the same 10 11 supervisors, and receiving training separately from former Barrick employees. While there may 12 be some indicia of accretion, such as centralized control of labor relations and similar work 13 performed by both workforces, Respondent cannot meet its burden to show that the functional 14 integration is “so substantial as to negate [the] separate identity of the single-facility unit.”37 15 16 Indeed, there is negligible integration as it relates to unit employees—and virtually no common 17 day-to-day supervision and interchange between the two groups of employees—the factors most 18 critical to determining if a pre-existing bargaining unit has lost its separate identity. 38 Thus, 19 Respondent’s withdrawal of recognition is unlawful since the long-standing historical unit 20 21 22 23 24 25 26 27 28 34 See California Pacific Med. Center v. NLRB, 87 F.3d 304, 306-311 (9th Cir. 1996) (enforcing finding of single-facility unit following hospital merger where other facility had no history of representation among its nurses and nurses at each facility had limited interchange and no common day-to-day supervision, but shared some centralized management, hiring, and training). 35 See Frankl I, 650 F.3d at 1356 (noting that the district court should sustain the Director’s factual allegations if they are “within the range of rationality”). 36 See, e.g., Holly Farms Corp., 311 NLRB 273, 279 (1993), enforced, 48 F.3d 1360 (4th Cir. 1995), affirmed, 517 U.S. 392 (1996). 37 See AM Property Holding Corp., 365 NLRB No. 162, slip op. at 6 (Dec. 15, 2017). 38 See, e.g., Towne Ford Sales, 270 NLRB 311, 311-12 (1984), enforced, 759 F.2d 1477 (9th Cir. 1985) (employee interchange and common daily supervision are particularly important for the accretion analysis). Page 16 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 22 of 30 1 retained its identity; and, in the absence of an accretion, the extant CBA acted as a bar to the 2 withdrawal of recognition. 39 3 Furthermore, Respondent’s claim that the MOU privileged its withdrawal of recognition 4 5 ignores the context of that agreement. The intent of the MOU was to make clear that Newmont 6 employees crossing over onto former Barrick properties would remain represented and covered 7 by the CBA, while the Union would make no claim to represent former Barrick employees 8 crossing over onto former Newmont properties. Indeed, the MOU recognized that limited 9 purpose, noting that its stated “intent” was that the identity and rights of each group “remain as 10 11 they existed before the lease period.” App 1 Ex 1 p. 68-69. In fact, the Union’s reading of the 12 MOU was consistent with Respondent’s stated intent from the outset, when it informed the 13 Newmont employees in May 2019 that the joint venture would recognize the Union and adopt 14 the CBA. Finally, it would be irrational to conclude that the Union willingly disavowed 15 16 representation of a 1350-person unit that it has represented for over 50 years, and for which it 17 had recently negotiated a CBA. 40 Thus, the context of the MOU, the text of the agreement itself, 18 and common sense, belie Respondent’s argument that the Union disclaimed interest in 19 representing the unit employees. 20 21 22 23 24 25 26 27 28 39 See, e.g., Cook County School Bus, Inc., 333 NLRB 647, 652 (2001) (“there was a contract bar in place, which prevented withdrawal of recognition from the Union”), enforced 283 F.3d 888 (7th Cir. 2002)); Raymond Interior Systems, 367 NLRB No. 124, slip op. at 9 (May 14, 2019) (restating that an incumbent union enjoys a presumption of majority support for the term of its collective-bargaining agreement, up to a maximum of three years) (citations omitted); El ToritoLa Fiesta Restaurants, Inc. v. NLRB, 929 F.2d 490, 491 (9th Cir. 1991) (same). 40 See TransMontaigne, Inc., 337 NLRB 262, 263 (2001) (concluding that a union’s contractual waiver of a successor-employer’s adoption of a collective-bargaining agreement would not be read as a waiver of the union’s statutory right to represent unit employees because “it would be irrational for the union to agree that, based on a change in corporate ownership, it will give up its fundamental right to represent employees”); see also Local Joint Executive Bd. of Las Vegas v. NLRB, 540 F.3d 1072, 1079 (9th Cir. 2008) (affirming that an employer claiming waiver of a statutory right must demonstrate that the issue was “fully discussed” and the union “consciously yielded or clearly and unmistakably waived” its right) (internal citations omitted). Page 17 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 23 of 30 1 2 Lastly, there is no dispute that, following Respondent’s withdrawal of recognition, Respondent ceased contributing to unit employees’ pension plan and no longer honored the 3 terms of the CBA, including seniority provisions, annual raises, paid time off, or premium pay. 4 5 6 Repudiating the CBA and unilaterally changing employees’ terms and conditions of employment without bargaining in good faith with their Union clearly violates the Act. 7 8 Thus, it is highly likely Petitioner will establish that Respondent violated Section 8(a)(5) [29 U.S.C. § 158(a)(5)] of the Act by withdrawing recognition from the Union, repudiating the 9 CBA, and making unilateral changes to the unit employees’ working conditions. 10 B. Interim Relief is Just and Proper to Prevent Irreparable Harm to Employees’ Statutory Rights and to Protect the Efficacy of the Board’s Final Order 11 12 “[I]n the labor field, as in few others, time is crucially important in obtaining relief.”41 13 14 Respondent’s illegal conduct threatens irreparable harm to the national labor policy encouraging 15 good-faith collective bargaining embodied in Section 1 of the Act, the employees’ right to 16 organize under Section 7 of the Act, and the efficacy of the Board’s ultimate remedial order. 17 Congress has declared that “encouraging the practice and procedure of collective 18 19 bargaining” is “the policy of the United States.” 29 U.S.C. § 151. Section 7 of the Act grants 20 employees the right to decide whether they wish “to bargain collectively through representatives 21 of their own choosing . . .” 29 U.S.C. § 157. In this case, the employees exercised that statutory 22 right and freely selected their representative, but Respondent’s unlawful conduct quashes that 23 choice, contrary to the purposes of the Act. Without timely interim relief, Respondent’s 24 25 withdrawal of recognition, repudiation of the CBA, and unilateral changes, will undermine 26 employees’ support for the Union and deprive employees of the benefits of collective bargaining. 27 Over time, without an immediate injunction requiring interim recognition, good-faith bargaining, 28 41 NLRB v. C & C Plywood Corp., 385 U.S. 421, 430 (1967). Page 18 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 24 of 30 1 2 compliance with the extant contract, and rescission of the changes, these harms will be irreparable and the Board’s final remedial order will be ineffective. Respondent will succeed in 3 permanently depriving its employees of Union representation through its illegal conduct, 4 5 thwarting the Act’s intent. 6 Over time, Respondent’s withdrawal of recognition will irreparably erode employees’ 7 support for their chosen representative as the Union is unable to protect employees or affect their 8 working conditions while the case is pending before the Board. 42 The employees predictably will 9 shun the Union because their working conditions will have been unaffected by collective 10 11 bargaining for several years, and they will have little, if any, reason to support the Union. 43 This 12 lost support for the Union will not be restored by a final Board order in due course. By the time 13 the Board issues its final order, it will be too late; employees will have given up on their Union. 44 14 In this case, absent interim relief, irreparable loss of support for the Union is virtually 15 16 17 18 19 20 21 22 23 24 25 26 27 28 certain. Respondent’s illegal rejection of the bargaining relationship and repudiation of the CBA 42 See Louisiana-Pacific Corp. v. NLRB, 858 F.2d 576, 578, 579 (9th Cir. 1988) (illegal “repudiation of the bargaining obligation” is “a serious unfair labor practice” that “disrupts the employees’ morale, deters their organizational activities, and discourages their membership in unions”), quoting Franks Bros. Co. v. NLRB, 321 U.S. 702, 704 (1944); Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 49-50 (1987); see also NLRB v. Mrs. Fay's Pies, 341 F.2d 489, 491, 492 (9th Cir. 1965) (illegal bargaining tactics “subvert employee confidence in the Union's representation”); Cf. NLRB v. American Natl. Ins. Co., 343 U.S. 395, 402 (1952) (“Enforcement of the obligation to bargain collectively is crucial to the statutory scheme”). 43 See Frankl I, 650 F.3d at 1362 (“the result of an unremedied refusal to bargain with a union, standing alone, is to discredit the organization in the eyes of the employees, to drive them to a second choice, or to persuade them to abandon collective bargaining altogether”); Brown v. Pacific Tel. & Tel., 218 F.2d 542, 544 (9th Cir. 1955) (withdrawal of recognition will cause “drifting away” of employee support for union); Coffman v. Queen of the Valley Medical Center, 895 F.3d 717, 728 (9th Cir. 2018) (unlawful withdrawal of recognition warranted injunction under Section 10(j)); Overstreet v. Apex Linen Service, Inc., 2018 WL 832851 *12-13 (D. Nev. 2018) (“By refusing to negotiate in good faith, [the employer] has successfully thwarted any union agreement for nearly a year, thus undermining the union's effectiveness and denying the employees their right to bargain collectively[; t]his is a recognized irreparable harm”). 44 See Small, 661 F.3d at 1192 (“delay in bargaining weakens support for the union, and a Board order cannot remedy this diminished level of support”). Page 19 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 25 of 30 1 2 has placed the Union in a particularly vulnerable position. The unilateral change to at-will employment, and the resulting loss of job protection by the Union, has left many employees 3 feeling terrified and betrayed. The loss of the contractual pension plan has also created fear and 4 5 anxiety in the workforce, especially among long-term employees and those nearing retirement. 6 The Union’s loss of employee support, in turn, will make the Board’s final recognition 7 and bargaining order ineffectual, leading to remedial failure. “With only limited support … the 8 Union will be unable to bargain effectively regardless of the ultimate relief granted by the 9 Board.” 45 Further, with a weakened union, a final Board bargaining remedy will be unable to 10 11 “recreate the original status quo with the same relative position of the bargaining parties.” 46 As 12 such, no meaningful, productive good-faith bargaining will occur under the Board’s final order. 47 13 For these reasons, numerous courts, including the Ninth Circuit, have recognized that an 14 employer’s unlawful refusal to bargain inherently and predictably causes irreparable harm. 48 15 16 Absent an interim order, Respondent will defeat the Union, elude its bargaining obligation, and 17 frustrate the intent of Congress by virtue of its unlawful actions. Ordering Respondent to 18 recognize and bargain in good faith with the Union now offers the best chance of preserving the 19 20 21 45 22 23 24 25 26 27 28 Id. at 1193. Frankl I, 650 F.3d at 1363. 47 See Small, 661 F.3d at 1196 (“if support for the [union] decreases without an injunction, it ‘will be unable to bargain effectively regardless of the ultimate relief granted by the [NLRB]’”). 48 See Frankl I, 650 F.3d at 1362 (withdrawal of recognition context; “inferences from the nature of the particular unfair labor practice at issue remain available[; f]or instance, with regard to the central statutory violations likely established here, violations of Section 8(a)(5), continuation of that unfair labor practice, failure to bargain in good faith, has long been understood as likely causing an irreparable injury to union representation”); Small, 661 F.3d at 1191 (“Given the central importance of collective bargaining to the cause of industrial peace, when the Director establishes a likelihood of success on a failure to bargain in good faith claim, that failure to bargain will likely cause a myriad of irreparable harms”; independent evidence of irreparable harm was not required where employer unlawfully refused to recognize union). 46 Page 20 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 26 of 30 1 Union’s support before it is irrevocably diminished, thereby protecting employees’ statutory 2 right to choose representation and preserving the Board’s remedial effectiveness. 49 3 Similarly, interim rescission of Respondent’s unlawful changes in working conditions is 4 5 necessary to curb the predictable loss of employee support for the Union caused by unilateral 6 changes in critical terms and conditions, damage that an eventual Board order likely cannot 7 remedy. 50 Indeed, as described above, the adverse changes to job protections and pensions are 8 already having a chilling effect on the employees. The negative changes to wage rates, shift 9 differentials, paid time off, seniority, double time pay, time and a half pay, health care coverage, 10 11 and grievance-arbitration will likely have a similar impact. 51 For the same reason, an order 12 requiring Respondent to comply with the parties’ extant CBA is also necessary. 52 13 14 Further, interim rescission of the changes is necessary to restore an “even playing field” for bargaining. 53 Restoring the unlawfully changed conditions so that the Union will not be 15 16 forced to “bargain back” the unlawful changes prevents Respondent from benefitting from its 17 18 19 20 21 22 23 24 25 26 27 28 49 Scott, 241 F.3d at 669 (“[s]uccessful bargaining could restore the employees’ interest in the Union”). 50 See Norelli v. HTH Corp., 699 F. Supp. 2d 1176, 1201 (D. Haw. 2010) affd. sub nom. Frankl v. HTH Corp. (Frankl I), 650 F.3d 1334 (9th Cir. 2011) (unilateral changes “send the message to the employees that their union is ineffectual, impotent, and unable to effectively represent them”); East Bay Automotive Council v. NLRB, 483 F.3d 628, 634 (9th Cir. 2007) (unilateral action “is likely to have a long-lasting effect on employee support for a union because each paycheck reminds them of the likely irrelevance of the union”), citing May Dept. Stores Co. v. NLRB, 326 U.S. 376, 385 (1945) (“unilateral action minimizes the influence of organized bargaining[; i]t interferes with the right of self-organization by emphasizing to the employees that there is no necessity for a collective bargaining agent”). 51 Interim rescission of any or all changes would be upon the request of the Union. See, e.g., Children's Hospital of San Francisco, 312 NLRB 920, 931 (1993), enforced sub nom. Cal. Pac. Med. Ctr. v. NLRB, 87 F.3d 304, 311 (9th Cir. 1996). 52 See Aguayo v. South Coast Refuse Corp., 1999 WL 547861 *17-18 (C.D. Cal. 1999) (Section 10(j) order requiring employer to comply with terms of agreed-upon labor agreement). 53 See Coffman, 895 F.3d at 728 (Ninth Circuit affirming rescission of unilateral changes under Section 10(j) injunction); see also Kreisberg v. Healthbridge Mgmt., LLC, 732 F.3d 131, 143 (2d Cir. 2013), cert. denied 574 U.S. 1066 (2014). Page 21 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 27 of 30 1 unfair bargaining advantage. 54 Unilateral changes necessarily frustrate the statutory objective of 2 establishing employee working conditions through collective bargaining. 55 3 In addition, while Respondent is benefiting from its unlawful refusal to bargain pending 4 5 Board litigation, the employees contemporaneously and irreparably suffer the loss of the benefits 6 of collective bargaining and representation by their chosen Union. The benefits of collective 7 bargaining include negotiated improvements in terms and conditions of employment, such as 8 higher wages or benefits packages. A final Board order is “forward-looking” and will not 9 compensate for the benefits that the Union might have secured through bargaining in the 10 11 present. 56 The lost benefits of representation also go beyond wages to include such items as job 12 security, safety and health conditions, and the protection of a grievance-arbitration procedure, 13 which because they are non-monetary cannot be made whole by a Board order in due course. 57 14 The employees are currently suffering the loss of all of these benefits, including the protections 15 16 contained in the CBA and the right to collectively bargain to mitigate COVID 19 risks. 17 A broad cease-and-desist order is appropriate to prevent further violations because 18 Respondent has engaged in “egregious or widespread misconduct ... demonstrat[ing] a general 19 20 21 54 22 23 24 25 26 27 28 See Kreisberg, 732 F.3d at 143 (interim rescission of unilateral changes was necessary to avoid bargaining “in the shadow of work conditions unilaterally imposed” by the employer). 55 See NLRB v. Katz, 369 U.S. 736, 747 (1962) (“Unilateral action by an employer without prior discussion with the union … obstruct[s] bargaining, contrary to the congressional policy”). 56 See Small, 661 F.3d at 1191-92 (quoting Bloedorn v. Francisco Foods, Inc., 276 F.3d 270, 299 (7th Cir. 2001)); see also Frankl I, 650 F.3d at 1363. 57 See Small, 661 F.3d at 1191-92 (“unions provide a range of non-economic benefits to employees that are not realized when an employer refuses to bargain with the union”); Asseo v. Centro Medico del Turabo, 133 LRRM 2722, 2729 (D. P.R. 1989) (“employees will also lose the benefits of representation, such as health and safety advocacy and grievance representation, which cannot be compensated by a final Board order”), aff’d, 900 F.2d 445 (1st Cir. 1990); see generally Scott, 241 F.3d at 667 (“The value of the right to … representation is immeasurable in dollar terms”). Page 22 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 28 of 30 1 disregard for the employees’ fundamental statutory rights,” 58 and it assures employees that their 2 rights will be protected. 59 Finally, posting the order during the pendency of the administrative 3 4 proceedings will inform and reassure employees of their rights. 60 5 In contrast to these serious irreparable harms, any harm to Respondent from an interim 6 injunction is minimal. 61 An interim bargaining order is not permanent. 62 The order would not 7 8 compel agreement to any specific term or condition of employment advanced by the Union but only requires that NGM bargain in good bargain. 63 Any agreement reached between the parties 9 10 under a Section 10(j) decree can contain a condition subsequent to account for the possibility of 11 the Board’s ultimate refusal to grant a final bargaining order remedy. 64 The costs of collective 12 bargaining falls on both parties and does not defeat a request for an interim bargaining order. 65 13 Indeed, the parties extant CBA is not set to expire until March 2022, and interim compliance 14 with the contract would not impose an undue burden on Respondent. Finally, an injunction 15 16 serves the public interest by “ensur[ing] that an unfair labor practice will not succeed” because of 17 18 58 19 20 21 22 23 24 25 26 27 28 Frankl II, 693 F.3d at 1061. Paulsen v. PrimeFlight Aviation Servs., Inc., 718 F. App’x 42, 45 (2d Cir. 2017) (summary order); see also, e.g., Hooks v. Ozburn-Hessey Logistics, LLC, 775 F. Supp. 2d 1029, 1052 (W.D. Tenn. 2011) (cease-and-desist order appropriate “to prevent irreparable chilling of support for the Union among employees and to protect the NLRB’s remedial powers”). 60 See, e.g., Hooks, 775 F. Supp. 2d at 1054 (ordering posting). 61 See NLRB v. Phelps Dodge Corporation, 313 U.S. 177, 182 (1941) (“Protection of the workers' right to self-organization does not curtail the appropriate sphere of managerial freedom; it furthers the wholesome conduct of business enterprise”). 62 See Seeler v. The Trading Port, Inc., 517 F.2d 33, 40 (2d Cir. 1975) (“there is nothing permanent about any bargaining order . . . particularly an interim order which will last only until the final Board decision”). 63 See Small, 661 F.3d at 1196 (in the “balance of the equities, when ‘[t]he company is not compelled to do anything except bargain in good faith,’ the risk from a bargaining order is ‘minimal’”); Overstreet v. Thomas Davis Medical Centers, P.C., 9 F.Supp.2d 1162, 1167 (D. Ariz. 1997). 64 See, e.g., Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047, 1054 (2d Cir. 1980). 65 See Small, 661 F.3d at 1196; Scott, 241 F.3d at 669. 59 Page 23 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 29 of 30 1 the long administrative process. 66 In addition, interim relief furthers the public interest in 2 fostering collective bargaining to safeguard industrial peace. 67 3 V. CONCLUSION 4 Upon the foregoing, it is respectfully submitted that Petitioner has demonstrated that it is 5 6 likely to succeed in establishing Respondent’s unlawful conduct in withdrawing recognition 7 from the Union, repudiating the CBA, and unilaterally changing employees’ working conditions. 8 Yet, if there is no injunction, Respondent wins by the mere passage of time. By the time the 9 Board and Courts finally force Respondent to undo its illegal conduct, Respondent will have 10 11 stripped employees of their chosen representative and greatly weakened the employees’ support 12 for the Union, securing the benefit of its unlawful conduct, since the Union may be unable to 13 regain the support and confidence of the employees. Thus, even if the Board ultimately issues a 14 bargaining order in this case, the Union may not be able to engage in effective collective 15 16 bargaining with Respondent if the employees’ support for the Union has been irreparably 17 dissipated. It is for this very type of situation that Congress created Section 10(j). Accordingly, 18 the Court is urged to issue an injunction as prayed for in the Petition. 19 DATED AT Oakland, California, this 4th day of June 2020. 20 21 22 23 24 25 26 27 28 66 Small, 661 F.3d at 1197 (quoting Frankl I, 650 F.3d at 1365-66); see also Seeler, 517 F.2d at 39 (the public interest is in “prevent[ing] frustration of the purposes of the Act”). 67 See Ford Motor Co. v. NLRB, 441 U.S. 488, 499 (1979) (“National labor policy contemplates … collective bargaining. … this is preferable to allowing recurring disputes to fester outside the negotiation process until strikes or other forms of economic warfare occur”); Fibreboard Paper Products Corp v. NLRB, 379 U.S. 203, 211 (1964) (“The Act was framed with an awareness that refusals to confer and negotiate had been one of the most prolific causes of industrial strife”); Asseo v. Centro Medico del Turabo, Inc., 900 F.2d 445, 455 (1st Cir. 1986) (“If the goal of the labor laws and regulations is to strengthen the bargaining process, then ordering bargaining … cannot be contrary to the public interest”); Paulsen v. Remington Lodging & Hospitality, LLC, 773 F.3d 462, 469 (2d Cir. 2014) (“The principal purpose of a [Section] 10(j) injunction is to guard against harm to the collective bargaining rights of employees”). Page 24 Memorandum of Points and Authorities in Support of Petition for Injunction Case 3:20-cv-00331-LRH-WGC Document 3 Filed 06/04/20 Page 30 of 30 1 Respectfully submitted, 2 _/s/ Coreen Kopper_____ Coreen Kopper 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 25 Memorandum of Points and Authorities in Support of Petition for Injunction