Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 1 of 46 1 ANTHONY L. HALL, ESQ. Nevada Bar No. 5977 2 AHall@SHJNevada.com JEREMY B. CLARKE, ESQ. 3 Nevada Bar No. 13849 JClarke@SHJNevada.com 4 SIMONS HALL JOHNSTON PC 6490 S. McCarran Blvd., Ste. F-46 5 Reno, Nevada 89509 Telephone: (775) 785-0088 6 Attorneys for Respondent Nevada Gold Mines LLC dba Nevada Gold Mines 7 8 9 10 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 VALERIE HARDY-MAHONEY, Regional 14 Director of the Thirty-Second Region of the National Labor Relations Board, for and on 15 behalf of the National Labor Relations Board, 16 17 18 Petitioner v. NEVADA GOLD MINES LLC DBA 19 NEVADA GOLD MINES 20 21 22 Respondent and NEWMONT USA LIMITED DBA 23 NEWMONT MINING CORP 24 25 26 27 28 Party-In-Interest CASE NO.: 3:20-cv-00331-LRH-WGC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO PETITION FOR INJUNCTION UNDER SECTION 10(j) OF THE NATIONAL LABOR RELATIONS ACT ORAL ARGUMENT REQUESTED Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 2 of 46 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 1 TABLE OF CONTENTS 2 TABLE OF CONTENTS…………………………………………………………………. i 3 TABLE OF AUTHORITIES……………………………………………………………… ii 4 I. STATEMENT OF THE CASE/INTRODUCTION………………………………. 1 5 II. FACTUAL BACKGROUND……………………………………………………… 2 6 A. Barrick, Newmont and the time period before NGM’s formation………… 2 7 B. Formation of NGM………………………………………………………… 3 8 C. Memorandum of Understanding…………………………………………… 4 9 D. July 1, 2019 Moving Forward………………………………………………5 10 III. INJUNCTIVE RELIEF LEGAL STANDARD……………………………………. 5 11 IV. LEGAL ARGUMENT…………………………………………………………….. 7 12 A. The NLRB has no Likelihood of Success on the Merits……………………7 13 1. Pursuant to the MOU, the NLRB is prevented from pursuing 14 its claims under the doctrines of waiver and estoppel…………… 7 15 2. The NLRB’s withdrawal claim is barred by the statute 16 of limitations……………………………………………………... 11 17 3. The Former Newmont Bargaining Unit is No 18 Longer Intact or Appropriate……………………………………. 14 19 4. The NLRB lacks Jurisdiction over the events that form 20 the primary basis of its theories………………………………….. 19 21 5. The Board’s Single Employer Theory Fails……………………... 20 22 i. Interrelation of Operations…………………….………. 22 23 ii. Common Management………………………………… 23 24 iii. Centralized Control of Labor Relations……………….. 24 25 iv. Common ownership……………………………………. 26 26 27 V. NGM HAS NOT RECOGNIZED THE UNION, MUCH LESS WITHDRAWN RECOGNITION…………………………………………………. 26 28 i Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 3 of 46 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 1 A. If the Injunction is Issued NGM stands to suffer real and substantial 2 harm………………………………………………………………………... 30 3 1. The Alleged Harm to OE3 is Purely Speculative…………………. 31 4 2. The Alleged Harm to OE3 is not Irreparable……………………… 31 5 3. The Alleged Harm is not Imminent……………………………….. 32 6 B. Balance of the Equities is strongly in favor of NGM……………………….34 7 1. Delay in Filing Petition for Injunction……………………………. 34 8 2. The Parties cannot be returned to the Status Quo…………………. 34 9 3. The Harm To NGM, Employees and the Elko Community 10 Outweighs the Speculative Harm to OE3…………………………. 34 11 C. Public Interest is not served in if the Injunction is issued…………………..35 12 VI. CONCLUSION…………………………………………………………………….. 37 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 27 Filed 06/26/20 Page 4 of 46 1 2 3 4 5 6 7 8 9 10 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 TABLE OF AUTHORITIES Federal Cases Ad - Art, Inc., 290 N.L.R.B. 590 (N.L.R.B. July 29, 1988)……………………………………………… 21 Aguayo v. Tomco Carburetor Co., 853 F.2d 744 (9th Cir. 1988)………………………………………………………………32, 34 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011)……………………………………………………………. 6 Angle v. Sacks, 382 F.2d 655 (10th Cir. 1967)……………………………………………………………. 32 A.T. Massey Coal Co. v. Int'l Union, United Mine Workers of Am., 799 F.2d 142 (4th Cir. 1986)…………………………………………………………….. 9 Boeing Co., 2019 NLRB 505 (N.L.R.B. September 9, 2019)…………………………………………. 15, 16 Border Steel Rolling Mills, Inc., 204 NLRB 89 (1973)…………………………………………………………………….. 15, 16 Canton, Carp's, Inc., 125 NLRB 483 (1959)…………………………………………………………………… 21 Christiansen v. APV Crepaco, Inc., 178 F.3d 910, 916 (7th Cir. 1999)……………………………………………………….. 11 Daly v. Del E. Webb Corp., 96 Nev. 359, 361, 609 P.2d 319 (1980)………………………………………………….. 8 Deferiet Paper Company v. NLRB, 235 F.3d 581 (D.C. Cir. 2000)…………………………………………………………… 14 Ednor Home Care, 276 N.L.R.B. 392 (1985)………………………………………………………………… 27 Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987)………………………………………………………………………. 17, 18 Frankl v. HTH Corp., 650 F.3d 1334 (9th Cir. 2011)…………………………………………………………… 6, 30 28 iii Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 5 of 46 1 2 3 4 5 6 7 8 9 10 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Galardi v. Naples Polaris, LLC, 129 Nev. 306, 301 P.3d 364 (2013)……………………………………………………… 10 Gottwals v. Rencher, 60 Nev. 35, 98 P.2d 481 (1940)………………………………………………………….. 29 Hammontree v. NLRB, 925 F.2d 1486 (D.C. Cir. 1991)………………………………………………………….. 7 Int'l Union of Operating Engineers, Local 150, AFL-CIO v. NLRB, 361 F.3d 395 (7th Cir. 2004)…………………………………………………………….. 9, 26 Lederach Elec., Inc. & Morris Rd. Partners, LLC & IBEW, Local 380 362 NLRB 62 (2015)…………………………………………………………………….. 23 Local Lodge No. 1424 v. NLRB, 362 U.S. 411 (1960)……………………………………………………………………… 11 Mahon v. NLRB, 808 F.2d 1342 (9th Cir. 1987)……………………………………………………………. 7 Metro. Edison Co. v. N.L.R.B., 460 U.S. 693, 103 S. Ct. 1467, (1983)…………………………………………………… 8 Motion Picture Machine Operators, 204 N.L.R.B. 142 (1973)…………………………………………………………………. 19 NLRB v. B.A. Mullican Lumber and Manufacturing Company, 535 F.3d 271 (2008)……………………………………………………………………… 30 NLRB v. Burns Int'l Sec. Servs., Inc., 406 U.S. 272, 287, 92 S. Ct. 1571 (1972)………………………………………………… 9, 18 NLRB v. Don Burgess Const. Corp., 596 F.2d 378 (9th Cir. 1979)…………………………………………………………….. 21, 26 NLRB v. Le Fort Enterprises, Inc., 791 F.3d 207 (1st Cir. 2015)…………………………………………………………….. 19 NLRB v. Los Angeles Yuma Freight Lines, 446 F.2d 210 (9th Cir. 1971)…………………………………………………………....... 11 NLRB v. MacMillan Ring-Free Oil Co., 394 F.3d 26 (9th Cir. 1968)………………………………………………………………. 14 NLRB v. Marsden, 701 F.2d 238 (2d Cir. 1983)……………………………………………………………… 19 iv Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 6 of 46 1 2 3 4 5 6 7 8 9 10 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NLRB v. Security-Columbian Banknote Co., 541 F.2d 135 (3d Cir. 1976)……………………………………………………………… 14 NLRB v. Somerville Const. Co., 206 F.3d 752 (7th Cir. 2000)………………………………………………………………20 NLRB v. Southern Bakeries, LLC, 786 F.3d 1119 (8th Cir. 2015)……………………………………………………………. 6 NLRB v. Creative Vision Resources, LLC, 783 F.3d 293 (5th Cir. 2015)……………………………………………………………... 6 NLRB v. Sullivan Bros. Printers, Inc., 38 F.3d 58 (5th Cir. 1994)……………………………………………………………….. 6 NLRB v. United Technologies Corp., 884 F.2d 1569 (2d Cir. 1989)……………………………………………………………. 7 NLRB v. Welcome-American Fertilizer Co., 443 F.2d 19 (9th Cir. 1971)……………………………………………………………… 21 Overton Markets, Inc., 142 NLRB 615 (1963)…………………………………………………………………… 21 Pace v. Honolulu Disposal Serv., Inc., 227 F.3d 1150 (9th Cir. 2000)…………………………………………………………… 8 PCC Structurals, Inc., 017 NLRB 618 (N.L.R.B. December 15, 2017)…………………………………………. 15 P.S. Elliot Services, 300 NLRB 162 (1990)…………………………………………………………………… 16 Plumbers and Pipefitters Local Union No. 520 v. NLRB, 955 F.2d 744 (1992)……………………………………………………………………… 7 In re Ridgewood Healthcare Center, Inc., 367 N.L.R.B. 110 (April 2, 2019)……………………………………………………….. 1, 31 Radio Union 1264 v. Broadcast Service, Inc., 380 U.S. 255, 85 S. Ct. 876 (1965)………………………………………………………. 21 Sakrete of N. Cal., Inc. v. NLRB, 332 F.2d 902 (9th Cir. 1964)…………………………………………………………….. 21 Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974)………………………………………. 30 v Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 7 of 46 1 2 3 4 5 6 7 8 9 10 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 11 12 13 14 San Luis Trucking, 2007 NLRB LEXIS 172 (N.L.R.B. May 8, 2007)………………………………………... 21 Sierra On–Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415 (9th Cir.1984)…………………………………………………………….. 5 Small v. Avanti Health Sys., LLC, 661 F.3d 1180 (9th Cir. 2011)……………………………………………………………. 18 Solien v. Merchants Home Delivery Serv., Inc., 557 F.2d 622 (8th Cir. 1977)……………………………………………………………... 33 Southwestern Bell Telephone Company v. NLRB, 667 F.2d 470 (5th Cir. 1982)………………………………………………………………7 Trident Seafoods, Inc. v. NLRB, 101 F.3d 111 (D.C. Cir. 1996)…………………………………………………………… 14 Winter v. Natural Resources Defense Council, 555 U.S. 7, 129 S.Ct. 365 (2008)………………………………………………………… 6, 36 Wisconsin Gas Co. v. FERC, 758 F.2d 669 (D.C.Cir.1985)…………………………………………………………….. 30 15 Statutes 16 29 U.S.C. § 160(a)…………………………………………………………………………. 19, 28 17 29 U.S.C. § 160(b)…………………………………………………………………………. 11 18 29 U.S.C. § 160(j)………………………………………………………………………….. 5 19 20 Other Authorities 21 The Developing Labor Law, § 15.III.A.1 (2017)…………………………………………. 19 22 23 24 25 26 27 28 vi Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 8 of 46 1 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 2 MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF THE CASE/INTRODUCTION 3 At the outset, to secure an injunction requires that the Petitioner, Valerie Hardy-Mahoney, 4 who filed on behalf of the National Labor Relations Board (“Board”), must meet two high standards. 5 First, likelihood of success on the merits requires an analysis of the underlying law and facts. Here, 6 the Board is attempting to force NGM to recognize a contract that it did not sign or agree to adopt. 7 Regardless of the label attached to the argument (e.g., single employer or withdrawal of 8 recognition) 1 this Court must carefully consider NGM’s Constitutional right of freedom of contract 9 and the momentous impact of compelling a contract on an entity which did not agree to the contract. 10 Second, the Petitioner must show that an injunction is necessary to prevent irreparable harm. 11 Accordingly, as discussed below, the Board failed to establish the necessary components required 12 for an injunction under either of these requirements. 13 The Board utterly disregards the clear and unambiguous terms of the Memorandum of 14 Understanding (“MOU”) between Newmont Mining Corp. (“Newmont”) and the International 15 Union of Operating Engineers, AFL-CIO (“OE3” or the “Union”). 2 16 expressly prohibits the Board from arguing or using events that occurred during the Lease Period 17 (July 1 through December 22). However, despite this prohibition, the Board’s Single Employer 18 theory is 100% premised on events occurring during the Lease Period. Thus, likelihood of success 19 on the merits is foreclosed by the clear language of the MOU. Beyond the insurmountable hurdle 20 presented by the MOU, there is no straight-faced argument that Newmont and NGM are a single 21 employer, particularly during the operative period of this dispute (after December 22, 2019). Specifically, the MOU 22 23 24 25 26 27 28 The Board’s Consolidated Complaint (Petition at Ex. 4) also has claims of successorship and perfectly clear successorship. However, in an apparent acknowledgement that those theories cannot meet this standard, the Board did not present them to this Court in its MPA as a basis for the injunction. Indeed, under the recently decided In re Ridgewood Healthcare Center, Inc., 367 N.L.R.B. 110 (April 2, 2019) there is no legitimate argument that NGM is a perfectly clear successor because it made clear to employees that they were at-will and that NGM intended to establish its own policies, wages and other terms of employment. However, despite these facts, and clear precedent, the Board has not dismissed that portion of its frivolous Consolidated Complaint. 1 NGM is expressly named as a third-party beneficiary of the MOU. The parties also explicitly named NGM as able to enforce the terms of the MOU. App. 1, Ex 1 at p. 69 (Respondent will refer to the Appendix and Exhibits attached to the Petition’s Memorandum of Points and Authorities as “App.”). 2 1 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 9 of 46 1 The Board is also violating the United States Constitution’s commerce clause as well as the 2 National Labor Relations Act (“NLRA”) by its assertion of jurisdiction over events which occurred 3 prior to when Respondent, Nevada Gold Mines, LLC (“NGM”) engaged in any interstate commerce. 4 Not only does the Board’s 10(j) Petition violate NGM’s Constitutional rights, the Board fails to even 5 bring this issue to the Court’s attention, even though this issue has been raised with the Board 6 numerous times. 7 Moreover, despite a clear statute of limitations bar against the Board’s withdrawal of 8 recognition claim, the Board nevertheless continues to abuse its power and pursue this frivolous and 9 time barred claim. The Board’s avarice to abuse its power apparently knows no bounds. 10 Compounding these abuses, the Board untimely requests an extreme and draconian 11 injunction. The Board fails to provide anything more than speculation as to the possible harm if an 12 injunction is not issued, while simultaneously failing to address the obvious disparity of harm that 13 would be imposed on NGM, its employees and the Elko community, if the requested injunction were 14 to issue. 15 II. 16 FACTUAL BACKGROUND A. Barrick, Newmont and the time period before NGM’s formation 17 Barrick Gold Corporation (“Barrick”) is a global mining company and has mining operations 18 in thirteen (13) countries. 3 Newmont is also an international mining company with mines in nine 19 (9) countries. 4 On or about February 1, 2019, Newmont and OE3 entered into a Collective 20 Bargaining Agreement (“CBA”). App. 1, Ex. 1 at pp. 15-57. NGM is not a party to the CBA. 21 Prior to the formation of NGM, Barrick was in the process of attempting a hostile takeover 22 of Newmont. 5 To avert the hostile takeover, Newmont agreed to create the joint venture and become 23 24 25 26 27 28 3 Barrick, About Us (June 21, 2020, 12:55 pm), https://www.barrick.com/about/default.aspx. Newmont, About Us (June 11, 2020, 1:58 PM), https://www.newmont.com/about-us/default.aspx. A court may take judicial notice of a fact outside the pleadings if the fact “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned” under Federal Rule of Evidence 201. 4 Reuters, Barrick Gold ends hostile Newmont bid, signs Nevada joint venture (June 21, 2020, 12:59 pm), https://www.reuters.com/article/us-newmont-mining-m-a-barrick-gold. See also, Walker Decl., Ex. B at ¶¶5-7. 5 2 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 10 of 46 1 a minority owner thereof. Id. In furtherance of the joint venture proposal, Newmont filed its Form 2 8-K with the Security Exchange Commission (“SEC”) on March 10, 2019. App. IV, Ex. 24 at p. 1. 3 Attached to Newmont’s March 10, 2019 SEC filing was the draft Limited Liability Company 4 Agreement and the Implementation Agreement, which was the initial outline of the still unnamed 5 joint venture. Id. at pp. 6-217. Indeed, one of the terms critical to Newmont was that it obtained a 6 two-year standstill agreement from Barrick regarding its hostile stock acquisition proposal. Id. at p. 7 2. Barrick and Newmont clearly are not the same company, are in fact international competitors, and 8 their actions are dictated by arms-length negotiations. In addition, and contrary to the NLRB’s 9 representations that Newmont’s SEC filing somehow amounts to NGM’s recognition of the Union, 10 the March 10, 2019 filing expressly states, 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 11 Investors and security holders should not rely on the representations, warranties and convents or any descriptions thereof as characterizations of the actual state of facts or condition of Newmont or Barrick or any of their subsidiaries or affiliates. Moreover, the information concerning the subject matter of the representations and warranties may change after the date of the Nevada agreement . . .. 12 13 14 15 Id. (emphasis added) 6; See also, Id. at p. 3 disclaimer regarding “forward looking statements.” 16 Thus, the Board’s reliance on the initial version of the Implementation Agreement is misplaced. 17 B. Formation of NGM 18 The NGM corporate entity was formed on or about April 11, 2019 to become the joint 19 venture entity upon the closing of the transaction. NGM Secretary of State Entity Information, 20 attached as Exhibit A; see also, App. V, Ex. 25 at pp. 8-252. 7 Barrick holds a 61.5% and Newmont 21 holds a 38.5% interest in NGM. Id. at p. 3. 22 Even though the NGM entity was formed on April 11, 2019, it was an empty shell and had 23 no assets, no employees and engaged in no commerce until July 1, 2019, when the joint venture was 24 finalized. App. V, Ex. 25 at pp. 8-252. After continued negotiations between Barrick and Newmont, 25 the First Amendment to Implementation Agreement became effective and NGM began operations 26 27 28 6 The “Nevada Agreement” refers to the Implementation Agreement. 7 The entity was created in Delaware on April 11 and registered in Nevada on April 15. 3 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 11 of 46 1 and engaged in interstate commerce on July 1, 2019. Id. See also, Walker Decl., Ex. B at ¶¶7-8. 2 On July 1, Newmont and NGM entered into the Transition Services Agreement (“TSA”). App. 1, 3 Ex. 1 at p. 136. Also, on July 1, 2019, Newmont and NGM entered into the Newmont Employee 4 Lease Agreement. App. 1, Ex. 1 at p. 190. The Newmont Employee Lease Agreement memorialized 5 the 6 transition/implementation period. Id. See also, Walker Decl., Ex. B at ¶9. arms-length negotiated lease of Newmont employees to NGM during the 7 On July 5, 2019, Newmont filed its amended Form 8-K SEC filing, containing the First 8 Amended Implementation Agreement between Barrick and Newmont. App. V, Ex. 25. Significantly, 9 the final filing deleted the prior language which indicated that Newmont would cause, in the future, 10 NGM to recognize OE3. The operative and final Implementation Agreement clearly disclaimed 11 union recognition by granting NGM the right to determine if it would recognize OE3 at the end of 12 the lease period. App. IV, Ex. 25 at pp. 16-17. 13 Significantly, the Operating Member for NGM is Barrick, not Newmont. App. IV, Ex. 24 p. 14 99. Further, since Barrick gets to name three of the five NGM managers, Barrick has effective 15 control over most of the operational decisions concerning NGM. Id. at p. 108. Barrick’s initial 16 managers consisted of Barrick employees, Mark Bristow, Catherine Raw, and Robert Krcmarov. Id. 17 The initial Managers appointed by Newmont Member were, Gary Goldberg and Tom Palmer. Id. 18 Thus, effective July 1, three of the five managers are from Barrick, not Newmont. In addition, Greg 19 Walker, Paul Wilmot, Eric McCallum, and Duncan Bradford, all former Barrick employees, are key 20 managers overseeing daily operations and the human resources department of NGM. 21 C. Memorandum of Understanding 22 As might reasonably be expected, where there was a new company created between two 23 international competitors, and where over 7,000 employees and billions of dollars in Nevada assets 24 are involved, a transition or implementation period was necessary. During this transition period, the 25 parties were justifiably concerned about maintaining the status quo and preserving all parties’ rights 26 during the implementation period, including NGM’s non-union status. To effectuate an efficient 27 transition and to protect the NGM’s status as non-union (consistent with the final language in the 28 Implementation Agreement), Newmont and OE3 executed the MOU on September 9, 2019. App. 1, 4 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 12 of 46 1 Ex. 1 at pp. 68-69. The MOU identifies the effective period in which the terms of the MOU would 2 govern as July 1, 2019 through December 31, 2019 (the “MOU Period” aka the “Lease Period”). Id. 3 The express intent of the MOU was that: 4 During the Lease Period, the Status Quo shall be maintained with regard to Barrick’s and [NGM’s] pre-Lease Period rights and non-union status, including without limitation with regard to Barrick’s and [NGM’s] lack of any duty to bargain with OE3 and the lack of any obligation to recognize, acknowledge or be bound by the CBA. 5 6 7 8 9 Id. (emphasis added). Thus, Newmont and OE3 agreed that NGM had not recognized OE3 and was not unionized. D. July 1, 2019 Moving Forward 10 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The MOU Period allowed NGM to create new systems for operations, management structure, human resource management, payroll, health insurance, mining processes, truck routes, policies (called employee standards), logistics systems, etc. In fact, the attached declarations detail many of the new systems, functional integration, new policies, new payroll and benefits, new equipment and training, etc. See, Walker Decl., Ex. B; Boman Decl. Ex. C; Bradford Decl., Ex. E; Nedrow Decl., Ex. F; Neff Decl., Ex. G; Bourke Decl., Ex. H; Wilmot Decl. Ex. I; Wilson Decl., Ex. D; Connolly Decl., Ex. J; Davis Decl., Ex. L. In contrast to the NLRB’s employee declarations, which represent a micro-view of the actual situation, NGM has secured declarations representing a comprehensive view of the employee and operational integration of NGM. III. INJUNCTIVE RELIEF LEGAL STANDARD Similar to all preliminary injunctions, a § 10(j) injunction does not result in an “adjudication on the merits but rather [is] a device for preserving the status quo and preventing the irreparable loss of rights before judgment” that will be issued by the NLRB after an unfair labor practices hearing. Sierra On–Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir.1984)(emphasis added). Section 10(j) of the Act allows a district court to grant injunctive relief “it deems just and proper.” 29 U.S.C. § 160(j). A party seeking a preliminary injunction must establish (1) that she is likely to succeed on the merits; (2) that she is likely to suffer irreparable harm in the absence of 5 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 13 of 46 1 preliminary relief; (3) that the balance of equities tips in her favor; and (4) that an injunction is in 2 the public interest. Winter v. Natural Resources Defense Council, 555 U.S. 7, 129 S.Ct. 365, 374, 3 172 L. Ed. 2d 249 (2008). These elements of an injunction are evaluated on a sliding scale. Alliance 4 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). 5 Critically, however, “[a] preliminary injunction is an extraordinary remedy never awarded as of 6 right. In each case, courts must balance the competing claims of injury and must consider the effect 7 on each party of the granting or withholding of the requested relief.” Id. at 24, 376 (internal citations 8 omitted). When the Regional Director seeks § 10(j) relief, she “must establish that irreparable harm 9 is likely, not just possible, in order to obtain a preliminary injunction.” Frankl v. HTH Corp., 650 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 10 F.3d 1334, 1355 (9th Cir. 2011)(emphasis added). 11 In addition, the availability of injunctive relief under Section 10(j) of the NLRA is extremely 12 limited. NLRB v. Southern Bakeries, LLC, 786 F.3d 1119, 1123 (8th Cir. 2015); NLRB v. Creative 13 Vision Resources, LLC, 783 F.3d 293, 301 (5th Cir. 2015); NLRB v. Sullivan Bros. Printers, Inc., 38 14 F.3d 58, 67 (5th Cir. 1994). Injunctive relief under Section 10(j) “is a limited exception to the federal 15 policy against labor injunctions and is reserved for serious and extraordinary cases when the 16 remedial purpose of the Act would be frustrated unless immediate action is taken.” Southern 17 Bakeries, LLC, 786 F.3d at 1123. More specifically, such relief is limited to cases “in the egregious 18 category, as compared to other unfair labor practices.” Creative Vision, 783 F.3d at 301. Further, 19 “interim relief in section 10(j) cases is not normally appropriate unless it is clear that ultimate success 20 for the Board will ‘not prove difficult.’” Sullivan Bros. Printers, Inc., 38 F.3d at 67. 21 Courts have repeatedly stressed that Section 10(j) relief is only appropriate in “those rare 22 situations in which the delay inherent in completing the adjudicatory process will frustrate the 23 Board’s ability to remedy the alleged unfair labor practices.” Southern Bakeries, LLC, 786 F.2d at 24 1123. The bar for injunctive relief under Section 10(j) must remain a “relatively high hurdle,” 25 otherwise, such relief “would effectively circumvent the normal N.L.R.B. processes established by 26 the Act and muddle the proper allocation of administrative and judicial functions.” Id. The remedy 27 for alleged unfair labor practices is typically in the administrative process “not with the district 28 courts.” Creative Vision, 783 F.3d at 302. 6 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 14 of 46 1 2 A. The NLRB has no Likelihood of Success on the Merits The merits of the Board’s legal theories are factually and legally deficient. However, the 4 Court should pay special attention to the first four (4) sub-sections below which, standing alone, are 5 case dispositive. Indeed, the Board’s two theories (withdrawal of recognition and single employer) 6 are barred as a matter of law because: (1) the claims are waived under the MOU; (2) the withdrawal 7 of recognition claim is barred by the statute of limitations; (3) the bargaining unit is not intact and 8 appropriate; and (4) the Board lacks jurisdiction over foundational events concerning withdrawal. 9 It is striking that the Board failed to live up to its duty of candor toward the Court by failing to 11 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 LEGAL ARGUMENT 3 10 SIMONS HALL JOHNSTON PC IV. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 address the below arguments. 1. Pursuant to the MOU, the NLRB is prevented from pursuing its claims under the doctrines of waiver and estoppel It is well-settled that a union may waive its statutory rights under the NLRA. See, e.g., Plumbers and Pipefitters Local Union No. 520 v. NLRB, 955 F.2d 744, 746 (1992) (union waived right to pursue unfair labor practice charge relating to grievance that it settled); NLRB v. United Technologies Corp., 884 F.2d 1569, 1575-76 (2d Cir. 1989) (union waived right to bargain over employer’s progressive discipline policy); Mahon v. NLRB, 808 F.2d 1342, 1345 (9th Cir. 1987) (union was empowered “to conclusively bind” unit employees to settlement limiting their backpay entitlement, “[w]holly apart from their own separate consents”); Southwestern Bell Telephone Company v. NLRB, 667 F.2d 470, 476 (5th Cir. 1982) (holding that union waived its right to request information that was relevant and necessary to its bargaining function). Moreover, courts have observed that the Board has a policy of deferring to private agreements as they further “the NLRA’s policy of encouraging private dispute resolution.” See Plumbers and Pipefitters, 955 F.2d at 752. In fact, the NLRA and LMRA “have as their paramount goal the promotion of labor peace through the collective efforts of labor and management.” Id. (quoting Hammontree v. NLRB, 925 F.2d 1486, 1502 (D.C. Cir. 1991) (Edwards, J., concurring)). Lastly, courts enforce waivers of union bargaining rights when the contract language 28 7 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 15 of 46 1 is specific, or the waiver is clear and unmistakable. Metro. Edison Co. v. N.L.R.B., 460 U.S. 693, 2 708, 103 S. Ct. 1467, 1477, (1983). 3 Here, the Board mischaracterizes, attempts to use inadmissible evidence, and tries to 4 minimize the impact of the Union’s clear and unmistakable admissions and waivers in the applicable 5 private agreement - the MOU. The Board ignores the specific language in the MOU, by claiming 6 that the limited intent of the MOU was to maintain union protection of Newmont employees and to 7 prevent the union from claiming it represented Barrick employees. MPA at p. 17:5-8. 8 However, despite the arguments of the Board, 8 OE3 expressly agreed that the status quo was: 9 (1) that NGM’s “non-union status” would be maintained; (2) that NGM “lack[s] any duty to 10 bargain with OE3;” and (3) that NGM lacks any “obligation, to recognize, acknowledge or be 11 bound by the CBA.” App. 1, Ex. 1 at p. 68(emphasis added). Each of these agreed provisions from 12 the MOU is fatal to the Board’s positions. 13 First, the MOU expressly recognizes NGM’s non-union status. Indeed, the MOU 14 unambiguously states that NGM’s “non-union status” was the status quo as of July 1, 2019. Initially, 15 it is important to recognize that OE3 actively negotiated the language of the MOU and provided 16 edits (See, Exhibit K) and cannot not disavow or ignore its terms. The MOU constitutes an admission 17 of NGM’s non-union status. If the status quo for NGM on July 1, 2019 was non-union, then logically 18 and legally, NGM never previously recognized OE3 or adopted the CBA. Further, even if NGM 19 had recognized OE3 by the conduct of non-NGM employees (and prior to the formation and 20 operation of NGM) as alleged by the Board, then the MOU is a waiver. Stated simply, prior 21 22 23 24 25 26 27 28 The Board relies on parole evidence in its’ attempt to alter the meaning of the MOU including but not limited to: Scott Fullerton’s declaration, at p. 3:23 (the April 22, 2019 letter); p. 5:15 (the May 10, 2019 letter); p. 5:10-17 (Mr. Fullerton’s explanation of his understanding of the MOU); p. 6:10-22 (additional explanation of the MOU). The parole evidence rule operates to bar extrinsic evidence of an agreement inconsistent with an unambiguous writing. Pace v. Honolulu Disposal Serv., Inc., 227 F.3d 1150, 1157–58 (9th Cir. 2000). Parole evidence may not be used to contradict the unambiguous terms of an agreement. Daly v. Del E. Webb Corp., 96 Nev. 359, 361, 609 P.2d 319, 320 (1980). Thus, the evidence relied upon by the Board is inadmissible and may not be considered. 8 Alternatively, even if the Court considers Fullerton’s notes concerning the MOU, those notes defeat the Board’s argument. Specifically, the exceptionally broad purpose of the MOU is reflected in his own notes: “MOU is being utilized to determine what works and will preserve the most jobs.” App. I, Ex. 2 at p. 223:1-3 & 231. Clearly, the parties discussed that the MOU authorized NGM to mix employees broadly in order to see “what works” in order to achieve the synergies which was the whole purpose of NGM. 8 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 16 of 46 1 recognition is both factually and legally completely opposite to and antithetical of non-union 2 status. The two cannot simultaneously exist. 3 To make matters worse for the Board’s theory, OE3 signed the MOU on September 9, 4 2019. As of that date, OE3 did not believe NGM had recognized it. This is a fact, which it 5 acknowledged by executing the MOU which clearly and unmistakably states this. After-the-fact, 6 and with the improper assistance of the Board, OE3 seeks to rewrite history and undo the clear and 7 unambiguous terms of the MOU. 8 Second, the MOU states that NGM lacks “any duty to bargain.” App. 1, Ex. 1 at p. 68. This 9 is a term of art in the context of successorship, recognition and single employer status. To be 10 specific, successor entities, single employers (where one is unionized), and employers who 11 voluntarily recognize the union all have a duty to bargain with union represented employees. 9 This 12 is critical, because by admitting NGM did not have “any duty to bargain,” as of September 9, 2019, 13 and during the entire Lease Period, OE3 is clearly admitting that NGM has not recognized it and 14 was not a single employer with Newmont. There is no other way to interpret this clear language. 15 Indeed, recognizing the futility of arguing about the clear waiver and admission by OE3, the Board 16 simply ignores the language. 10 Accordingly, the Board does not have a substantial likelihood of 17 18 19 20 21 22 23 24 25 26 27 28 See NLRB v. Burns Int'l Sec. Servs., Inc., 406 U.S. 272, 287, 92 S. Ct. 1571, 1582 (1972) (successor entities); see also A.T. Massey Coal Co. v. Int'l Union, United Mine Workers of Am., 799 F.2d 142, 144, fn. 1 (4th Cir. 1986) (single employers); Int'l Union of Operating Engineers, Local 150, AFL-CIO v. NLRB, 361 F.3d 395, 399 (7th Cir. 2004) (voluntary recognition). 9 The Board’s argument is a straw man argument. The Board argues that it would be irrational to interpret the MOU as disavowing the 1,350-person unit. Petitioner’s Memorandum of Points and Authorities (“MPA”) at p. 17:14-16. NGM has not made such an absurd argument. Among other things, the MOU was preserving the status quo so that Newmont would continue to comply with the CBA during the Lease period. Thus, there was no disavowal of representation nor has NGM ever argued such. 10 The Board also attempts to limit the “intent” to a few drivers. A simple question will help explain the broad context of the MOU: Why would OE3 agree to such broad and sweeping language, if the intent was only a few drivers? The answer is simple. It would not. However, the true context of the MOU is that the Union recognized that if it did not sign the MOU, then NGM could assert that the smaller number of Newmont employees had been accreted into the larger NGM combined workforce. Accretion would mean that effective on July 1, 2019, OE3 would have lost majority status and would no longer represent any employees. Specifically, the MOU states “that during the Lease Period the Newmont unionized employee[s](sic) shall not be deemed to be accreted into a non-union group.” App. 1, Ex. 1 at p. 68. The MOU also says that it “is agreed that there is a recognized risk of accretion.” Id. Among the broad effects of preserving status quo, the MOU prevented NGM from arguing accretion against OE3, during the Lease Period. The Board, consistent with its pattern of incomplete disclosures to the Court, pretends that this significant benefit to OE3 was not part of the MOU, and instead presents an absurd straw man argument. 9 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 17 of 46 1 success because OE3 agreed and waived any arguments to the contrary that NGM had already 2 recognized OE3 or was a single employer with Newmont during the Lease Period. 11 3 Lastly, the MOU states, NGM has no “obligation, to recognize, acknowledge or be bound by 4 the CBA.” App. 1, Ex. 1 at p. 68. Again, OE3’s admission that NGM had no obligation to recognize 5 or be bound the CBA is a fatal admission that NGM had never recognized or agreed to be bound by 6 the CBA. Thus, along with OE3’s two other admissions highlighted above, conclusively precludes 7 all of the Board’s theories. In fact, for the Board to demonstrate a likelihood of success on the merits, 8 the Court would have to ignore each admission and waiver, which would require ignoring the 9 MOU. However, the Court is required to give meaning to the intent and express language used by 10 the parties. Galardi v. Naples Polaris, LLC, 129 Nev. 306, 310, 301 P.3d 364, 367 (2013) 11 (“contract interpretation strives to discern and give effect to the parties' intended meaning”). 12 Turning from the admissions to evidentiary issues, the MOU states, “in order to maintain the 13 Status Quo, no events or facts occurring during the Lease Period shall be used in a manner to alter 14 the Status Quo, including to argue or demonstrate accretion, alter-ego or any other successorship 15 principle or doctrine.” Not only is the Board prevented from arguing “any other successorship 16 principle,” such as prior recognition or single employer, but pursuant to the terms of the MOU, the 17 NLRB cannot rely on any event or fact that occurred from July 1 to December 22, 2019. In other 18 words, all of the evidence attached the Board’s filings which occurred during the MOU/Lease 19 Period, and which they attempt to use to support the Board’s theories, are prohibited by the MOU 20 from consideration and are not admissible pursuant to the express terms of the MOU. Indeed, the 21 parties felt that this exclusionary principle was so important that they stated, a second time in the 22 MOU, that “[a]ll events and occurrences during the Lease Period may not be used by any party for 23 any purposes, except to enforce the terms of this MOU.” Thus, the precluded evidence may not be 24 considered, and for this additional reason the Board has no evidence to support its claims and 25 therefore lacks any likelihood of success. 26 27 28 11 The Lease Period was terminated on December 22 instead of December 31 for a number of logistical reasons which are not relevant here. 10 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 18 of 46 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 1 2. The NLRB’s withdrawal claim is barred by the statute of limitations 2 The NLRA provides that “no complaint shall issue based upon any unfair labor practice 3 occurring more than six months prior to the filing of the charge with the Board and the service of a 4 copy thereof upon the person against whom such charge is made.” See 29 U.S.C. § 160(b). 12 The 5 policy underlying the NLRA’s limitation period is “to bar litigation over past events after records 6 have been destroyed, witnesses have gone elsewhere, and recollections of the events in question 7 have become dim and confused, and of course to stabilize existing bargaining relationships.’” Local 8 Lodge No. 1424 v. NLRB, 362 U.S. 411, 419 (1960). 9 The statute of limitations begins running when the charging party knew, or should have 10 known, of the alleged unfair labor practice. See Christiansen v. APV Crepaco, Inc., 178 F.3d 910, 11 916 (7th Cir. 1999). Although the statute of limitations ordinarily runs from the occurrence of each 12 alleged unlawful act, the continuing violation theory does not apply if the conduct within the 13 applicable limitations period is only unlawful in light of conduct outside of the limitations 14 period. Local Lodge No. 1424, 362 U.S. at 422. In other words, subsequent conduct relating to the 15 initial alleged violation “does not restart the limitations clock” and cannot “be used to revive a time 16 barred claim.” Christiansen, 178 F.3d at 916. 17 Applying these principles, the Ninth Circuit has held that alleged withdrawal of recognition, 18 repudiation of collective bargaining agreement, refusal to participate in grievances, and refusal to 19 bargain do not constitute continuing violations. See NLRB v. Los Angeles Yuma Freight Lines, 446 20 F.2d 210, 214-15 (9th Cir. 1971). As it explained: 21 Under the Board’s theory of a continuing refusal to bargain, it is only by reliance on the Company’s time-barred conduct as being a refusal to bargain that the Board is able to draw the inference that the later conduct continued the refusal into the six-month period. The use of the earlier conduct is not merely ‘evidentiary.’ It serves to change conduct which, in its absence, is not an unfair labor practice, into conduct which is. This the Board may not do. To put it another way, the Board’s approach necessarily required it to litigate whether the Company’s time-barred acts amounted to a refusal to bargain. If they did not, the later events could not have been a continuation. But to permit litigation 22 23 24 25 26 27 28 Despite knowing that the 6-month statute of limitations is a significant issue effecting likelihood of success on the merits, the Board did not even bother raising this issue to the Court. 12 11 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 19 of 46 1 as to the legal significance under the Act of those past events would be directly contrary to the policies underlying section 10(b) and amount to the revival of legally defunct unfair labor practices. 2 3 4 Here, the Board asserts that NGM somehow recognized OE3 through statements of 5 Newmont’s Director of Employee and Labor Relations, Hiliary Wilson, and when Newmont filed 6 its original Form 8-K with the SEC, both of which occurred in March of 2019, and by statements 7 from Barrick employee Greg Walker, also made prior to July 1, 2019. Petition, Ex 4 at p. 43; App. 8 IV, Ex 24 at p. 46; MPA at p. 4:1-5. The later amended Implementation Agreement states that “[t]he 9 Parties shall cause the JV Company to recognize” OE3 as the representative. App. IV, Ex 24 at p. 10 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Id. at 215. 46 (emphasis added). 11 However, assuming arguendo that such conduct by Newmont and Barrick somehow is 12 recognition of OE3 by NGM, such recognition was clearly withdrawn on June 27, 2019 by the 13 communications regarding the MOU. The Board, however, attempts to move these events to July 14 30, 2019 (a period within the 6-month statute of limitations), when OE3 received a second copy of 15 the MOU. MPA at p. 6:21-22; App. III, Ex. 23 at p. 91. Even a cursory reading of the July 30, letter 16 demonstrates the false timeline. Specifically, the MOU was not first provided on July 30, but as the 17 letter indicates was provided to OE3 “several weeks ago.” App. III, Ex. 23 at p. 91. In fact, the 18 initial exchange of the MOU occurred on June 27, 2019. See, Exhibit N. Importantly, the June 27 19 MOU contained the operative terms of the final MOU concerning the non-union status of NGM, 20 lack of NGM’s duty to bargain, and lack of any obligation to recognize OE3, which were all the 21 same as the signed MOU (e.g., OE3 did not negotiate to change those portions of the MOU). In 22 short, OE3 received the MOU – which clearly and unmistakably declares NGM’s non-union status 23 – on June 27, 2019. The Board falsely claimed that withdrawal of recognition occurred “for the first 24 time” on November 15, 2019. MPA at p. 8:3-5; App. 1, Ex. 1 at p. 9. The real timeline is devastating 25 26 27 28 12 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 20 of 46 1 to the Board’s after-the-fact 13 created theory of withdrawal of recognition, because OE3 did not file 2 its charge alleging withdrawal of recognition until January 8, 2020. 3 Assuming, arguendo, that NGM had ever recognized OE3 in the first place, and setting aside 4 the June 27 clear withdrawal of recognition, there is another clear withdrawal of recognition on July 5 5, 2019. On July 5, 2019, Newmont filed a new Form 8-K with the First Amendment to 6 Implementation Agreement dated June 30, 2019. App. V, Ex. 25 at pp. 5-6. The amended 7 Implementation Agreement specifically deleted and replaced the language upon which the Board 8 relies with the statement that, at the end of the Lease Period (a.k.a., the MOU period), “the JV 9 Company shall be permitted to assess its own legal obligations and goals with respect to any 10 obligation that it may have, if any, under the 2019 Agreement or other Applicable Law. App. IV, 11 Ex. 25 at pp. 16-17. The term “Agreement” was specifically defined as the CBA that Newmont had 12 with OE3. App. IV, Ex. 25 at p. 16. Thus, the July 5, 2019 final Implementation Agreement between 13 Barrick and Newmont clearly withdrew any alleged prior recognition and stated that NGM would 14 makes its own decision on recognition at the end of the lease/MOU period. Consequently, the six 15 (6) months statute of limitations ran on January 5, 2020. OE3 did not file its charge alleging 16 withdrawal of recognition until January 8, 2020. Petition at Ex. 1(b). The Board attempts to avoid 17 this obvious statute of limitations problem by simply ignoring it and presenting this Court with the 18 19 20 21 22 23 24 25 26 27 28 13 The Board’s recognition position is belied by the facts. To begin, the MOU language clearly states that NGM is “non-union,” which is the opposite of prior recognition and cannot be reconciled with alleged recognition. Thus, as late as September 9, 2019 (when OE3 signed the MOU), OE3 clearly did not believe that NGM had recognized it and agreed that NGM was non-union at the time. Next, after OE3 began meeting with the NGM representatives in November of 2019, OE3 never claimed prior recognition. Boman Decl., Ex. C at ¶¶8-10. Indeed, OE3’s theory at the time was successorship and OE3 never once mentioned prior recognition or withdrawal of recognition during those talks. Id. OE3’s own representative, Phil Herring, admits that OE3 requested recognition by NGM during those meetings and never claims that OE3 had already been recognized. App. II, Ex. 4 at p. 15:17-19 (“NGM should recognize the Union…”). This was confirmed by OE3’s own letters and those from NGM during the time period. App. 1, Ex. 1 at pp. 75-79, 85 & 187-189; App. 1, Ex. 2 at 238-239 & 242-244. OE3’s December 13, 2019 letter is particularly instructive on this point. OE3 admits that NGM’s position was that ‘it need not recognize the Union.” Clearly, if as of December 13, OE3 believed that it had already been recognized, it would has stated this in response to NGM’s clearly stated non-recognition position. OE3 did not. Indeed, OE3 went on to state exactly the opposite and claimed that NGM had a duty “to recognize” it – not that it already had done so. Also, on December 13, 2019, OE3 filed its first charge and stated that NGM “had refused to recognize it.” See ex. A to NGM’s Answer to Petition for Temporary Injunction. Finally, on January 2, 2020, OE3 filed its first charge against NGM and alleged that “NGM had refused to recognize the Union.” Petition at Ex. 1(a). It was not until the Board got involved that OE3 changed their theory and, after-the-fact, attempted to cobble together its prior recognition story. 13 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 21 of 46 1 knowingly false narrative that withdrawal occurred “for the first time” on November 15, 2019. MPA 2 at p. 8:3-5; App. 1, Ex. 1 at p. 9. It clearly did not. 3 As a result of the above, and assuming arguendo recognition in the first place, the Board’s 4 claim of withdrawal of recognition is precluded because it was not brought within 6 months of the 5 withdrawal. See NLRB v. MacMillan Ring-Free Oil Co., 394 F.3d 26, 32-33 (9th Cir. 1968) 6 (determining that unlawful refusal to bargain claim was time-barred where it was based upon events 7 that preceded the charge by more than six months). As a result, the Board has no chance of success 8 on the merits of this claim and an injunction is not proper. 9 3. The Former Newmont Bargaining Unit is No Longer Intact or Appropriate 10 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Even if the Court puts aside the case dispositive issues of jurisdiction (addressed infra), the MOU, and the statute of limitations, the Board’s theories (withdrawal of recognition and single employer) are defeated if the former Newmont Bargaining Unit (“NBU”) is not appropriate or intact. The reason is that, if the former NBU is not appropriate or intact, it cannot legally be recognized by NGM. Indeed, it is well-established that a new employer has no obligations to the union of the former employer where the bargaining unit “does not conform reasonably well to other standards of appropriateness.” Trident Seafoods, Inc. v. NLRB, 101 F.3d 111, 119 (D.C. Cir. 1996). Courts have repeatedly held that where union and non-union employees are “functionally integrated” in the new workforce, the prior unit loses the requisite “community of interest.” Id. at 120. Further, “[a] unit might, for instance, be only marginally appropriate prior to the transaction, in which even relatively small changes following the transfer of ownership could push it into the category of an inappropriate unit.” See Deferiet Paper Company v. NLRB, 235 F.3d 581, 584 (D.C. Cir. 2000). In fact, “all of the Board cases in which successorship was found are predicated on the finding that the predecessor’s bargaining unit remained intact under the successor and continued to be an appropriate unit.” NLRB v. Security-Columbian Banknote Co., 541 F.2d 135, 139 (3d Cir. 1976). Here, the Board is attempting to force recognition of a unit which fails to comply with any of the continuity principles articulated above. To state it succinctly, all of the Board’s theories fail 14 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 22 of 46 1 because, even assuming (without conceding) that the former NBU was appropriate in the first place: 2 (1) the appropriate unit would be the entire combined equivalent workforce because they would 3 share a community of interest; (2) the prior NBU is now clearly inappropriate given its substantial 4 integration with former Barrick employees; and (3) the Union lacks majority status of the current 5 workforce. 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 6 7 a) Assuming, Arguendo, That the Former NBU Appropriately Combines Employees, The Appropriate Unit Would Be the Entire Equivalent Workforce Because They Would Share a Community of Interest. 8 A bargaining unit is not appropriate where there is functional integration between employees 9 within and outside the bargaining unit, “such that neither group can be said to have any separate 10 community of interest justifying a separate bargaining unit.” PCC Structurals, Inc., 2017 NLRB 11 618, *20 (N.L.R.B. December 15, 2017). Stated differently, a bargaining unit is inappropriate if 12 employees within the bargaining unit do not share a community of interest that is meaningfully 13 distinct from the interests of those excluded from that unit. Boeing Co., 2019 NLRB 505, *1 14 (N.L.R.B. September 9, 2019) (emphasis added). In determining appropriateness, the Act requires 15 bargaining-unit determinations that protect the Section 7 rights of all employees including those 16 proposed to be excluded from the bargaining unit. PCC Structurals, Inc., *37. 17 It is beyond any form of reasonable dispute that former Barrick employees hold jobs 18 meaningfully identical to the job classifications covered by the Newmont CBA. A few, of many, 19 examples may be helpful. With the re-opening of Goldstar, a formerly closed Newmont pit, Barrick 20 P&H electric shovels are now being used to excavate Goldstar. Bradford Decl., Ex. E at ¶¶6-7; 21 Davis Decl., Ex. L at ¶¶8-10. Consequently, Newmont shovel operators are being cross trained to 22 use the P&H electric shovels. Bradford Decl., Ex. E at ¶¶6-14. Therefore, NGM shovel operators at 23 Goldstar are both former Newmont and former Barrick employees who perform the same job duties 24 side-by-side. Similarly, NGM truck drivers transporting ore from Goldstar are made up of former 25 Barrick, former Newmont, as well as others, yet these truck drivers work the same shifts, drive the 26 same trucks, follow the same safety policies, and attend the same pre-shift meetings. Id. at ¶13. 27 Thus, there is a clear community of interest between the shovel operators. There is also an 28 indisputable community of interest between the truck drivers. The Board has no chance of success 15 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 23 of 46 1 on the merits in its ill-advised attempt to separate out these shovel drivers that are working side-by- 2 side and doing the same exact jobs. 3 The Emergency Response Teams (“ERT”), dispatch personnel, blast crews and maintenance 4 teams have all been, respectively, combined. Bradford Decl., Ex. E, at ¶¶11-12. These NGM 5 employees are made up of former Barrick, former Newmont, and new hires; yet these ERT, dispatch, 6 blast and maintenance employees work the same shifts, work/direct work on both former Barrick 7 and former Newmont mine sites, and work physically side-by-side with each other. Id. See also, 8 Wilmot Decl., Ex. I at ¶¶6-11 (integration of employees and operations for Heap Leach, Lab 9 Workers, Maintenance and Electrical and Instrumentation). Thus, as with the truck and shovel 10 operators described above, there is a clear community of interest between the respective ERT team 11 members, dispatch personnel, blast crews and maintenance crews, lab, electrical and 12 instrumentation, and maintenance and there is no meaningful distinction based on the identity of the 13 previous employer. Boeing Co., 2019 NLRB 505, *1 (N.L.R.B. September 9, 2019). 14 These are just a few examples, and the Court is requested to review the declarations of Greg 15 Walker (Ex. B at ¶¶12-14, 20), Duncan Bradford (Ex. E), Julie Davis (Ex. L), Adam Longman (Ex. 16 O), Timothy Brugato (Ex. M), Paul Wilmot (Ex. I), and Adam Longman (Ex. O). The Board had the 17 burden of proving that it has a strong likelihood of success on the merits of its claims. It has failed. 18 There is no meaningful distinction between the former Barrick and former Newmont employees 19 performing the same jobs, subject to the same rules, and the same pay. 20 21 22 23 24 25 26 27 28 b) The Former NBU Is Not Appropriate Because It Has Been Integrated into the NGM Workforce. The NLRB has routinely held that the bargaining unit is no longer appropriate when the employees of the non-union workforce are integrated with the union workforce, obviating any obligations the new employer might otherwise have to the Union. P.S. Elliot Services, 300 NLRB 162, 1162 (1990) (alleged successor had no obligation to bargain with union of predecessor’s employees where the new operations were “highly integrated” and “there is frequent employee interchange” such that there was no longer “a community of interest sufficient distinct and separate from [the other employees] to warrant the establishment of a separate appropriate unit.”); Border 16 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 24 of 46 1 Steel Rolling Mills, Inc., 204 NLRB 89, 821 (1973) (purported successor had no obligation to 2 recognize union of predecessor’s employees where they were “functionally integrated” with other 3 employees). 4 Beyond the examples above of the NGM employees being physically mixed and therefore 5 having shared communities of interest, the integration of NGM goes far beyond those examples. For 6 example, at Mill 5, a former Newmont site, NGM is processing stockpiles from the Betze pit, a 7 former Barrick mine. Bradford Decl., Ex. E at ¶¶13-15. As a result, these employees, whether they 8 came from Barrick, Newmont, or elsewhere, are all processing the same stockpiles pursuant to the 9 same NGM standards and procedures. Id.; See also, Brugato Decl., Ex. O at ¶¶11-12. The 10 collaboration at Mill 5 has resulted in functional integration among a large cross section of the 11 combined NGM workforce. 12 The re-opening by NGM of Goldstar, a formerly closed Newmont pit, serves as a striking 13 example of operational integration as well as employee integration, which was described above. 14 Specifically, following NGM’s creation, NGM moved the former Barrick equipment with much 15 larger shovels to the Goldstar pit and re-opened it. Id. 16 employees on a physical site that was operated by neither Newmont nor Barrick in the years prior to 17 the formation of NGM. Such work cannot be considered successor work, as it is totally new. 18 Further, such work is clearly integrated work. Id. at ¶¶16-21. In other words, NGM employs mixed 19 As demonstrated above, most of the surface operations have been fully integrated, and the 20 underground miners have also substantially integrated as well. Accordingly, the bargaining unit 21 previously represented by the Union is no longer intact or appropriate. This means that there is not 22 a likelihood of success on the merits for the Board. 23 c) NGM Cannot be a Successor Because the Former NBU Lacks Majority Status. 24 A union must demonstrate it represents a majority of the employees within an appropriate 25 bargain unit before it may be designated the exclusive bargaining representative. Section 9 (a) of the 26 Act [29 U. S. C. § 159 (a)]. Similarly, once the community of interest of a unit is determined, the 27 NLRB must determine whether the former employer’s workforce makes up a majority of the new 28 employer’s workforce. Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 59 (1987). One 17 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 25 of 46 1 of two dates is appropriate for ascertaining majority status. First, majority status may be determined 2 at the outset if it is clear that a majority of the new employer’s workforce will be made up of the 3 former employer’s workforce. Fall River Dyeing, 482 U.S. at 47 (1987) (citing NLRB v. Burns Int'l 4 Sec. Servs., 406 U.S. 272, 278-279 (1972)). Alternatively, if the employer is undergoing a transition 5 period and gradually developing its business and hiring employees then it is not appropriate to 6 determine majority status until the new employer reaches a “substantial and representative 7 complement” of its workforce. Id. at 47. To determine whether a "substantial and representative 8 complement" has been met, the Board’s primary considerations are (1) the degree to which job 9 classifications designated for the operation were filled or substantially filled, (2) whether the 10 operation was in normal or substantially normal production, (3) the size of the complement during 11 the transition period, (4) the time expected to elapse before a substantially larger complement would 12 be at work, and (5) the relative certainty of the employer's expected expansion. Small v. Avanti 13 Health Sys., LLC, 661 F.3d 1180, 1188 (9th Cir. 2011). 14 In this case, the NBU employees do not comprise a majority of NGM’s combined Carlin 15 equivalent workforce measured during either time period. The Newmont Employee Lease 16 Agreement terminated on December 22, 2019 and as of December 23, 2019, NGM had hired most 17 of the formerly represented Newmont employees, totaling 1,341. Boman Decl., Ex. C at ¶13. 18 Despite NGM hiring nearly all the NBU, NGM’s applicable workforce totaled 2,768 employees. 14 19 Id. Thus, the NBU was 48.45% and did not account for a majority. Thus, OE3 did not have majority 20 status as of December 23, 2019 and, in fact, the Board failed to make such a demonstration in its 21 MPA. NGM’s combined equivalent employees has since gone up, and as of February 2, 2020, 22 totaled 2,792 (the NBU declined to 1,329 and therefore represents only 47.6%). Id. 23 Moreover, ascertaining majority status is premature because of the effects of COVID-19. 24 NGM is still working towards a “substantial and representative complement.” Specifically, NGM is 25 26 27 28 NGM’s total workforce on December 23, 2019 was in excess of 7,000 employees. The numbers above represent the NBU and the equivalent non-union hourly employees. There are additional facts showing that OE3 does not represent a majority, including that they have historically low support, they have sought representation from another union and have voiced lack of support for OE3. Boman Decl., Ex. C at ¶¶11-13; Wilmot Decl., Ex. I at ¶17. 14 18 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 26 of 46 1 still working to fill vacancies across Carlin, including for Surface and Underground. NGM had 2 scheduled to hire new hourly employees across Carlin, but unfortunately the COVID-19 Pandemic 3 has hindered hiring activity. Walker Decl., Ex. B at ¶19-20. 15 Safety has been NGM’s top priority 4 and it is still unclear when things will return to “normal.” Nevertheless, NGM has re-opened the 5 Goldstar mine, begun processing stockpiles from the Betze pit that were previously not being 6 processed, and enhanced operations at Mill 5. These changes alone have contributed to NGM’s need 7 to expand its workforce. As discussed above, NGM has plans to hire additional employees across 8 Carlin to achieve its production goals, and these employees will need to be properly trained before 9 becoming fully operational. Consequently, NGM has not yet reached a substantial and representative 10 complement of its workforce. There is no case over the last four decades where the Board has found 11 successorship absent a finding of majority status. See The Developing Labor Law, § 15.III.A.1 12 (2017). Therefore, the Board has failed to meet its burden of showing majority status. 13 4. The NLRB lacks Jurisdiction over the events that form the primary basis of its theories 14 15 16 17 18 19 20 21 22 23 24 The Board only has jurisdiction to investigate alleged unfair labor practices “affecting commerce.” See 29 U.S.C. § 160(a). For non-retail enterprises, the Board has limited its jurisdiction until those entities have a gross outflow or inflow of revenue of at least $50,000. The Board lacks jurisdiction over a non-retail enterprise until its gross outflow or inflow of interstate commerce is at least $50,000. N.L.R.B. v. Marsden, 701 F.2d 238, 241 (2d Cir. 1983); see also NLRB v. Le Fort Enterprises, Inc., 791 F.3d 207, 210 (1st Cir. 2015). If the employer does not meet the jurisdictional threshold amounts established by the NLRB, the NLRB must dismiss for lack of jurisdiction. See Motion Picture Machine Operators, 204 N.L.R.B. 142 (1973). A challenge to the NLRB statutory jurisdiction may be raised at any time. NLRB v. Somerville Const. Co., 206 F.3d 752, 756 (7th Cir. 2000). It is undisputed that NGM was not a legal entity until April 11, 2019. Exhibit A. It is further 25 26 27 28 This relates to the balancing of the harms discussed infra. Specifically, because of the integration of NGM, and even though its still needs more workers, NGM was able to avoid furloughing employees during the COVID-19 pandemic. An injunction which robs NGM of its ability to effectively integrate its employees could cost jobs. 15 19 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 27 of 46 1 undisputed that NGM did not engage in interstate commerce until July 1, 2019. App. V, Ex. 25 at 2 pp. 8-252; see also Wilson Decl., Ex. D at ¶14. The NLRB completely ignores the forgoing case- 3 dispositive facts and relies on events that occurred well before NGM engaged in interstate commerce 4 and acts that were performed by Barrick or Newmont employees, not employees of NGM, which 5 occurred prior to July 1, 2019. For example, the Board depends on Newmont’s March 10, 2019 6 Form 8-K SEC filing to somehow 16 attribute recognition by NGM, an entity which was not yet 7 formed and did not submit the SEC filing. The Board further relies on Hiliary Wilson’s (Newmont’s 8 employee at the time) alleged statement on March 13, 2019, that NGM would recognize the Union 9 and adopt the terms of the CBA. MPA at p. 4:8-9. 17 The NLRB also cites to a letter dated May 10, 10 2019 from Greg Walker, a Barrick employee. Id at p. 4:14-17; see also, Walker Decl., Ex. B at ¶¶8, 11 15-17. All of the foregoing events occurred before NGM engaged in interstate commerce and are 12 not subject to the jurisdiction of the NLRA. Therefore, because the Board lacks jurisdiction over 13 events prior to July 1, 2019, its withdrawal of recognition theory utterly fails. 14 In failing to address the threshold matter of jurisdiction, the Board constitutionally 15 overreaches in its attempt to pin the conduct of other entities onto NGM. The Board further asks the 16 Court to force NGM to abide by the CBA, which it is not a party to – violating the contract clause, 17 Article I, Section 10, Clause 1 of the United States Constitution. The Board’s failure to address key 18 constitutional elements and lack of candor with the Court calls into question the motives and 19 reasoning behind the Board’s injunction request – and certainly demonstrates that the Board is not 20 likely to succeed on the merits. 21 5. The Board’s Single Employer Theory Fails 22 Assuming, arguendo, that the Court does not preclude this argument because of the waiver 23 in the MOU, the Board cannot show a likelihood of success in establishing a single element of the 24 25 26 27 28 16 It is notable that the Board fails to explain or provide authority for the proposition that Newmont’s filing somehow constitutes recognition by NGM – an entity that did not even exist at the time of the filing. Indeed, this failure represents a serious lack of candor toward the Court. Compare the Board’s characterization and Fullerton’s letter (which demonstrates a complete lack of understanding of the actual structure of the JV) to Wilson’s explanation of what transpired and was communicated. Wilson Decl., Ex. D at ¶¶7-12. 17 20 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 28 of 46 1 single employer analysis, let alone all four elements. The single employer theory reflects a 2 judgement that two businesses are considered the same under the NLRA. Radio Union 1264 v. 3 Broadcast Service, Inc., 380 U.S. 255, 256, 85 S. Ct. 876, 877 (1965). The controlling factors are 4 set forth as follows: (1) interrelation of operations; (2) common management; (3) centralized control 5 of labor relations; and (4) common ownership. Id. No one factor is controlling yet the determination 6 depends on the totality of the circumstances. NLRB v. Don Burgess Const. Corp., 596 F.2d 378, 384 7 (9th Cir. 1979); see also NLRB v. Welcome-American Fertilizer Co., 443 F.2d 19, 21 (9th Cir. 1971). 8 Further, common ownership is the least important factor. Sakrete of N. Cal., Inc. v. NLRB, 332 F.2d 9 902, 907 (9th Cir. 1964) (cert. denied). In the absence of a common labor relations policy, the Board 10 has required a high degree of interrelations of operations, common ownership and common 11 management. See Canton, Carp's, Inc.,125 NLRB 483 (1959); Overton Markets, Inc.,142 NLRB 12 615, 619 (1963). Further, as a matter of simple logic, even if a business was once a single employer, 13 if it ceases to be a single employer, then the status must be re-evaluated. 18 This is significant here, 14 because the Board cannot and does not event attempt to argue that NGM was a single employer as 15 of December 23 and moving forward. Instead, the Board limits its single employer facts to the Lease 16 Period. MPA at pp. 11-15. 17 In manufacturing its single employer theory, the NLRB ignores or completely misinterprets 18 the TSA and the Newmont Employee Lease Agreement. These agreements clearly establish NGM 19 is a separate and distinct entity from Newmont and that NGM is, in fact, paying Newmont for limited 20 services and employees during the MOU period, not exercising joint control. For example, the TSA 21 expressly states, “the JV Company desires to purchase from Newmont, and Newmont is willing to 22 provide to the JV Company, the transition services set forth in Schedule I hereto. App. I, Ex. 1 at p. 23 24 25 26 27 28 18 The Board addresses the post-December 22 period with a single sentence and misleading case citations. MPA at p. 15:1-2. The cases Petitioner cites to for purposes of establishing its single employer theory during Newmont’s six (6) month employee lease agreement miss the mark. The first case, Ad - Art, Inc. , 290 N.L.R.B. 590, 590 (N.L.R.B. July 29, 1988) involved two entities with identical ownership and ownership percentages respectively (immediate family members) and that was the final status – unlike here where the lease was a short six (6) month transition period. Further, San Luis Trucking, 2007 NLRB LEXIS 172, *1 (N.L.R.B. May 8, 2007) involves a wholly owned subsidiary formed for the purpose of establishing logistical services to compliment the parent company. In that case, the parent company shared the same owners and operators as the wholly owned subsidiary. Further, the parent company comprised the majority of the subsidiaries’ business (approximately 80%). Again, that was the permanent structure, unlike the transitory nature of the Lease Period. 21 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 29 of 46 1 139. 19 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 2 i. Interrelation of Operations 3 To correctly examine this issue, the Court must divide the analysis into two time periods. 4 The first is July 1 through December 22 and the second is December 23 until the present. Regarding 5 the first time period, and in examining common management, the Court is asked to step back and 6 recall that effective July 1 and during the Lease Period, Newmont had no Nevada mines relevant to 7 this analysis. Rather, as part of the formation of NGM it had contributed those mines to NGM and 8 Newmont lacked any ability to control the operations of NGM. Thus, Newmont had no mines to be 9 interrelated to NGM’s operations – it had contributed those mines and no longer owned them. 10 Newmont did have continuing administrative support, but those are not operations and were only 11 temporarily created by contract. The employees at issue here are not accounting, payroll, IT or other 12 services addressed by the TSA. The issue is interrelations of operations and Newmont no longer 13 had any and so could not be interrelated. 14 Stated another way, prior to July 1, 2019, NGM was not engaged in any mining operations, 15 had no employees and had no assets. Between July 1, 2019 and December 23, 2019, NGM engaged 16 in mining operations in the Carlin mines and Newmont did not. Newmont entered into a contract 17 with NGM to provide purely administrative support and services for a limited time. Further, Greg 18 Walker specifically explains that Newmont did not have any operational integration at all with NGM 19 during or after the Lease Period. Walker Decl., Ex. B at ¶10; Bradford Decl., Ex. E at ¶¶4-5. 20 21 Turning to the second period of time (December 23 to the present), the Board presented no evidence of interrelation of operations. 22 23 24 25 26 27 28 One of the Board’s central premise of its single employer analysis is that Newmont was a “managing partner” of NGM. MPA at p. 12:6-7. From this erroneous premise the Board engages in incorrect analysis of various documents. The Board uses legally significant terms incorrectly. First, as an LLC, NGM does not have “partners.” Further, the Operating Member was explicitly designated as Barrick, which receives $25 million a year in compensation from NGM for this role. App. V, Ex. 25 at p. 104. In this Operating Member role its authority is so great that it can conduct most business without a Board vote, which only occurs for very limited circumstances. Compare, Id. at pp. 94-96 (the limited circumstances requiring unanimous board vote) to pp. 104-112 (the broad authority granted to Barrick as the Operating Member). 19 22 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 30 of 46 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 1 ii. Common Management 2 When assessing common management in the single employer context, the assessment turns 3 on whether the same individuals currently control day-to-day operations of both companies. 4 Lederach Elec., Inc. & Morris Rd. Partners, LLC & Int'l Bhd. of Elec. Workers, Local 380, 362 5 NLRB 62, 63 (2015). 6 simultaneously. In other words, management must control both Newmont and NGM 7 Again, to correctly examine this issue, the Court must again divide the analysis into two time 8 periods. The first is July 1 through December 22 and the second is December 23 until the present. 9 Regarding the first time period, it is Barrick that is the designated as the Operating Member. App. 10 V, Ex 25 at p. 81. Newmont, on the other hand, is designated as the “Minority Member.” Id. at p. 11 90. While the Board attempts to puff up Newmont’s control, what it fails to acknowledge is that the 12 only place Newmont can control anything is the very few designated items where 100% affirmative 13 vote is required. Id. at p. 94-96. On the other hand, Barrick manages every other aspect of the 14 operations of NGM, including all day-to-day operational aspects of NGM. Id. at p. 93-94 & 104- 15 113. A review of the specific powers granted to Barrick, as the Operating Member, demonstrate that 16 Newmont has ZERO management control of day-to-day operations. 17 For example, Section 4.2(a)(1) specifically grants Barrick the power to “manage, direct and 18 control Operations (including any Exploration) …” Id at 104. Barrick, as the Operating Member, 19 controls the day-to-day payments, corporate filings, financial and accounting books of NGM, 20 acquisition of “all materials, supplies, equipment, vehicles, fuel and tools, water, utility and 21 transportation services required for operations,” “the authority to (A) hire, transfer or discharge, or 22 to cause the hiring, transfer or discharge of, employees assigned to Operations, (B) establish the 23 terms of their employment and their wages, salaries and benefits, (C) direct them as to their 24 obligations and duties and (D) supervise them in the performance of their jobs,” the ability to enter 25 contracts, purchase insurance, dispose of and acquire assets, etc. Id. at 105-109. As a result, there 26 is, manifestly, no common management of any of these day-to-day issues between Newmont and 27 NGM, because the agreement broadly vests Barrick with management of NGM. 28 Further, NGM employs a majority of Barrick managers and supervisors. For example, 23 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 31 of 46 1 NGM’s Board of Managers consists of five (5) managers, three (3) of which are appointed by 2 Barrick. Moreover, the majority of NGM’s upper management are also former Barrick employees. 3 Wilson Decl. ¶5; Boman Decl., Ex. C at ¶¶5-7; Walker Decl., Ex. B at ¶¶18. Finally, even as to the 4 Newmont management employees that were leased to NGM, Newmont did not control them – it 5 expressly gave such control exclusively to NGM. App. I, Ex 1 at p. 194 (Section 2.4 provides that 6 “the JV Company shall have the sole authority and discretion to manage all aspects of the 7 employment of the Newmont Leased Employees…”); see also Boman Decl., Ex. C at ¶16, 21-26; 8 Walker Decl., Ex. B at ¶¶10, 21; Wilmot Decl., Ex. I at ¶4; Bourke Decl., Ex. H at ¶¶5-6; Neff Decl., 9 Ex. G at ¶¶5-10. Thus, with the limited exception of the ability of Newmont to control two votes 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 10 on the Board of NGM, Newmont had no control over the management of NGM. 11 Turning to the second time period, once the Lease Period ended all of the Newmont 12 employees were terminated from Newmont and hired by NGM. Thus, any overlap of managers (with 13 the limited exception of the 2 board members from Newmont) ended. Thus, the Board cannot show 14 even a remote likelihood of success with respect to common management during either time period. 15 iii. Centralized Control of Labor Relations 16 The Board makes a series of incomprehensible and incorrect arguments. The Board first 17 asserts that the “agreements” entered into by Newmont and NGM demonstrate centralized control 18 of labor relations. MPA at p. 13:19-21. This is a perplexing argument because the agreements 19 (presumably the TSA and the Lease Agreement) explicitly state the opposite. Regarding labor 20 relations, the Lease Agreement expressly states that “the JV Company shall have the sole authority 21 and discretion to manage all aspects of the employment of the Newmont Leased Employees…” App. 22 I, Ex 1 at p. 194 (Section 2.4). The Board provides no citation to any clause in the Lease Agreement 23 which establishes centralized control of these employees between Newmont and NGM. Regarding 24 the TSA, the argument is even more bizarre. The TSA, as far as NGM can find, does not touch or 25 concern employee labor relations in any way. The Board had the obligation to identify for the Court 26 what specific section of the TSA supports their argument and the Board failed to do so. 27 The Board’s argument become even more incomprehensible when it next claims that NGM 28 exercised its control over labor relations through the May 10, 2019 “welcome” letter from Barrick 24 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 32 of 46 1 employee Greg Walker. MPA at pp. 13:22-23 through 14:1-2. NGM is utterly confused how a letter 2 from a Barrick employee somehow establishes centralized control between NGM (an entity which 3 was an empty shell with NO employees at this point in time) and Newmont. If anything, it shows 4 that Barrick was going to control labor matters, not Newmont. 5 The Board’s next argument is premised on a blatant misrepresentation to this Court. 6 Specifically, that Wilson “represented Respondent’s position as well as Newmont’s when she 7 informed the Union of the joint venture…” MPA at p. 14:4-5. 8 misrepresentation to the Court when it says that “Wilson explicitly spoke on behalf of ‘management’ 9 for both entities.” MPA at p. 14:9-10. However, the referenced discussion occurred on March 13, 10 2019. MPA at p. 4:7-8. Contrary to these false assertions, and according to the Board’s own exhibits, 11 NGM was not even formed until April 11, 2019. See, for example, App. V, Ex. 25 at p. 86; See also, 12 Exhibit A; Wilson Decl., Ex. D at ¶¶7-8. Thus, since Wilson obviously cannot speak on behalf of 13 an entity that does not even exist, the Board knowing made false statements to the Court. Beyond 14 the blatant falsity, Fullerton’s own “confirming” letter of the conversation shows no joint control of 15 labor relations between Newmont and NGM. Rather, Fullerton claims that Barrick is the successor 16 to Newmont. App. 1, Ex. 1 at p. 58. Thus, even OE3’s letter fails to demonstrate joint control 17 between Newmont and NGM. The Board repeats this 18 The Board engages in sophistry to advance their next argument. Specifically, the Board 19 argues that outside counsel Hall represented Newmont in July and then represented NGM in 20 November. MPA at p. 14:11-13. The fact that NGM decided to retain the same outside counsel that 21 once represented Newmont does not advance the Board’s argument one iota. Further, outside 22 counsel does not control labor relations, and the Board presented no evidence to the contrary. 23 The Board’s final argument for joint labor relations control is a repeat of its’ argument 24 concerning joint management – that by Newmont employees (such as Boman) being leased to NGM, 25 Newmont therefore had joint control. The argument is dispatched by reference to the Lease 26 Agreement itself, which clearly demonstrates that Newmont relinquished all control over leased 27 employees. App. I, Ex 1 at p. 194 (Section 2.4). Further, the actual control of labor relations was 28 Greg Walker (formerly Barrick) with advice and guidance from his executive team. Walker Decl., 25 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 33 of 46 1 Ex. B at ¶10, 21; Wilmot Decl., Ex. I at ¶4; Boman Decl., Ex. C at ¶16. Greg Walker specifically 2 disclaims that he was required to nor did he actually receive control from Newmont (including from 3 the two Newmont appointed board members) because labor relations decision making was 4 specifically granted to Barrick as the Operating Member. Walker Decl., Ex. B at ¶11. Thus, from 5 July 1 forward, NGM (under the operational control of Barrick) was exclusively in charge of labor 6 relations. 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 7 iv. Common Ownership 8 The NLRB appears to misunderstand the element of common ownership under the single 9 employer doctrine, apparently believing that because Newmont is a minority owner of NGM, that 10 Newmont and NGM somehow have common ownership. MPA at p. 12:8-9. This element looks at 11 the actual ownership of both entities and looks for commonality. NLRB v. Don Burgess Const. 12 Corp., 596 F.2d 378, 386 (9th Cir. 1979). When comparing the ownership of both entities, it is clear 13 there is totally separate ownership interests. Indeed, NGM is owned by Barrick (61.5%) and 14 Newmont (38.5%). Newmont, on the other hand, is a publicly traded company with The Vanguard 15 Group and BlackRock Fund Advisors being the largest shareholders at 11.21% and 7.48% 16 respectively. 20 Thus, NGM and Newmont do not share the same owners and the NLRB cannot 17 demonstrate a likelihood of success in addressing this element as well. 18 V. NGM HAS NOT RECOGNIZED THE UNION, MUCH LESS WITHDRAWN 19 RECOGNITION 20 It is well settled that a union becomes an appropriate bargaining representative “by prevailing 21 in a secret ballot election conducted by the NLRB or by convincing the employer to voluntarily 22 recognize it as the employees’ representative.” Int’l Union of Operating Engineers, Local 150, AFL- 23 CIO v. N.L.R.B., 361 F.3d 395, 399 (7th Cir. 2004). Explicit recognition occurs when the employer 24 “expressly assents to a union’s representation.” Id. 25 employer’s statement and conduct clearly and unequivocally demonstrate that it has made a Implicit recognition occurs only “when an 26 27 28 20 CNN Business, Newmont Corporation, (last visited June 14, 2020 at 11:47 AM), https://money.cnn.com/quote/shareholders/shareholders.html?symb=NEM&subView=institutional. 26 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 34 of 46 1 commitment to enter into negotiations with a union.” Id. (emphasis added). Employers have the 2 “right to a Board election to resolve the issue of majority status,” and they waive that right only if 3 they enter into a “clear agreement” to do so. Jefferson Smurfit Corp., 331 N.L.R.B. 809, 809 (2000). 4 Thus, the party claiming implicit recognition bears the burden to prove that the employer “has made 5 some statement or done some specific act which clearly imports recognition.” Ednor Home Care, 6 276 N.L.R.B. 392, 395 (1985) (emphasis added). 7 The Seventh Circuit’s application of these principles in International Union is instructive. 8 361 F.3d 395 (7th Cir. 2004). There, the employer met with a union representative, reviewed the 9 union’s authorization cards and remarked “you got them all,” discussed employees’ wages, hours, 10 and conditions of employment, and stated the union’s proposals were “peanuts,” “not a problem,” 11 and “a good way to go.” Id. at 398. In addition, the employer invited the union representative to 12 come back and said they “would be in touch.” Id. The court determined that the employer had not 13 explicitly or implicitly recognized the union, reasoning that the parties had “merely touched upon” 14 issues of import and no actual compromises had been made. Id. at 401. Additionally, the employer’s 15 statements and conduct were, at best, ambiguous, and thus insufficient to demonstrate that it 16 implicitly recognized the union. Id. at 401-02. As the court persuasively reasoned: 17 18 19 20 21 22 23 24 25 26 27 28 Were the NLRB to adopt a definition of ‘bargaining’ that included simple discussions or informational queries between unions and employers, employers might refrain from meeting with union representatives at all for fear of saying too much and inadvertently recognizing the union. This would inevitably lead to a decline in unionization, subverting the objectives of the NLRA. Id. at 401. Notably, the court also observed that the union’s own behavior belied any supposed recognition. Id. at 402. Indeed, the union had continued to demand recognition, presented authorization cards, and proposed a voluntary recognition agreement, which “would not have been necessary had the Union already been recognized by [the employer].” Id. Accordingly, the court concluded that the employer had not violated the NLRA by withdrawing recognition or refusing to bargain with the union. Id. International Union built upon an earlier Board decision, Ednor Home Care, 276 N.L.R.B. 392 (1985). In Ednor, the employer met with a union representative for 45 minutes, reviewed the 27 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 35 of 46 1 union’s authorization cards, and “asked a number of questions regarding the probable nature and 2 extent of the union demands and requested that [the union] furnish a blank form of the union 3 contract.” Id. at 393. The employer even asked if the union would accept fewer paid holidays, 4 discussed medical and pension plans, paid holidays, and vacation time. Id. Nevertheless, the Board 5 held that no voluntary recognition had occurred because the parties mere “touched on” these issues 6 and did not engage in “serious give-and-take negotiation.” Id. Rather, the employer spoke with the 7 union “in order to obtain as much information as possible.” Id. Thus, the Board held that the 8 employer had not violated Section 8(a)(5) by any withdrawal of recognition. Id. at 395. 9 Here, it is undisputed that OE3 has not prevailed in a secret ballot election conducted by the 10 NLRB (in fact, OE3 and the NLRB refused NGM’s offers to hold an election). Nor has NGM 11 explicitly or implicitly recognized OE3. This is incontrovertible because the Board’s reliance on 12 events that occurred prior to December 23, 2019 is prohibited under both 29 U.S.C. § 160(a) (lack 13 of jurisdiction) and the clear and unmistakable waiver contained in the MOU discussed supra. 14 However, assuming arguendo that the Court considers the merits of the Board’s theories, the Petition 15 must be denied nevertheless as discussed below. 16 The Board asserts that NGM somehow recognized it through statements of Newmont’s 17 Director of Employee and Labor Relations Hiliary Wilson and when Newmont filed its original 18 Form 8-K with the SEC, both in in March of 2019, and a letter from Barrick employee Greg Walker. 19 Petition, Ex 4 at p. 43; App. IV, Ex 24 at p. 46; MPA at p. 4:1-5. The NLRB misleadingly fails to 20 identify, mention or discuss four (4) important facts which contradict its own argument. First, 21 Newmont’s statement upon which the Board relies is not in the Form 8-K, but rather in the 22 subsequently amended Implementation Agreement, which has numerous unsigned and uncompleted 23 portions. App. IV, Ex 24 at pp. 4, 72, 73-83, 162-163. In other words, the Board blatantly attempts 24 to mislead this court by implying that the unfinished document is complete and formed a present 25 intent to recognize OE3. Second, the Form 8-K repeatedly states that the statements should not be 26 relied upon and that all forward looking statements may be amended or changed. App. IV, Ex 24 at 27 pp. 2-3. This fact, which the Board ignores, builds upon the first point. The documents filed were 28 merely notice documents, meant to provide information to the market, but were expressly limited as 28 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 36 of 46 1 non-binding, forward looking and subject to change. Third, the actual language in the subsequently 2 amended Implementation Agreement is forward looking, and not a current recognition of the CBA. 3 Specifically, the implementation agreement states that “[t]he Parties shall cause the JV Company to 4 recognize” OE3 as the representative. App. IV, Ex 24 at p. 46 (emphasis added). Appling basic 5 rules of grammar, “shall cause” is not the same has “hereby recognizes,” “has recognized” or “does 6 recognize”. The statement is a forward-looking statement and it is not a present intent to be 7 bound. This obvious and plain reading is made mandatory by the fact that the Implementation 8 Agreement, by its own terms, provide that it is not effective until the closing date, which was June 9 30, 2019. App. V, Ex. 25 at p. 3. This conclusion becomes incontrovertible by the fact that the March 10 12, 2019 Form 8-K explicitly states that “a definitive joint venture agreement will not be forthcoming 11 until later in the year.” App. V, Ex. 25 at p. 8. Fourth, and the most astounding of the Board’s lack 12 of candor with the Court, is the FACT that at the time of the March 12, 219 SEC filing by Newmont 13 the JV Company did not even exist – it was not formed until April 11, 2019. See, SOS Information, 14 Ex. A; App. V, Ex. 25 at p. 86. The Board’s failure to provide any legal authority to attribute 15 “recognition” to NGM, before it even exists, is telling. 16 In addition, as Int’l Union of Operating Engineers makes clear, where the union acts in a 17 manner inconsistent with clear recognition, it defeats its own claim. Int’l Union of Operating 18 Engineers, 361 F.3d at 399. NGM never executed a voluntary recognition agreement. Further, OE3’s 19 own behavior flatly belies any notion of recognition. OE3 entered the MOU with Newmont in which 20 OE3 agreed that it had no right to be recognized by NGM, and it agreed that NGM’s “non-union 21 status” would be maintained. App. 1, Ex. 1 at pp. 68-69. Thereafter, in at least two submissions to 22 the NLRB, the Union admitted, under oath, that NGM refused to recognize it. Take, for example, 23 the Charge the Union submitted on December 13, 2019, alleging that “NGM similarly refused to 24 recognize the Union.” On January 2, 2020, the Union filed another Charge in which it again admitted 25 that “[i]n the past six months, NGM has refused to recognize the Union.” In sum, OE3’s own counsel 26 has twice admitted, under oath, that NGM did not recognize OE3. 27 conclusively binding against OE3 and the Board. See Gottwals v. Rencher, 60 Nev. 35, 98 P.2d 481, 28 484 (1940) (“The implied power of an attorney to make admissions of fact on behalf of his client 29 These admissions are 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 37 of 46 1 within the scope of his authority in conducting litigation, is beyond question. Admissions when so 2 made by an attorney bind the client and dispense with the necessity of proof.”). See also, Wilson 3 Decl., Ex. D at ¶15; Boman Decl., Ex. C at ¶9. 4 The Board’s theory suffers more damage because the theory presented by OE3 up until 5 January 8 was that NGM was the successor to Newmont. This is significant to the instant Petition 6 because successorship is involuntary. The successorship theory forces the subsequent entity to 7 recognize the union. This is the antithesis of a voluntary acknowledgement. The Board cannot have 8 its cake and eat it too. 9 Finally, assuming arguendo that NGM had recognized the Union, NGM had a right—and in 10 fact was legally obligated—to withdraw recognition because the Union had lost majority support. 11 See NLRB v. B.A. Mullican Lumber and Manufacturing Company, 535 F.3d 271, 283 (2008) (“‘if a 12 union actually has lost majority support, the employer must cease recognizing it, both to effect to 13 the employees’ free choice and to avoid violating Section 8(a)(2) by continuing to recognize a 14 minority union.’”). The Board’s own MPA admits this is the standard and cites two (2) cases for 15 this rule. MPA at p. 15: 22-24. Accordingly, since the Board cannot dispute the lack of majority 16 status on the record before the Court, 21 the Board has no chance of success on the merits. 17 A. If the Injunction is Issued NGM stands to suffer real and substantial harm 18 19 20 21 22 23 24 25 26 27 28 When the NRLB seeks § 10(j) relief, it “must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.” Frankl v. HTH Corp., 650 F.3d 1334, 1355 (9th Cir. 2011). Further, irreparable harm is an imminent injury that is both great and likely, and for which legal remedies are inadequate. Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (citing Sampson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974)). NGM anticipates that the Board will argue that OE3 still has majority status of the former NBU and that the combined workforce should be ignored in calculating majority status. This argument, of course, if made will expose the lack of candor with the Court. Stated simply, the Board has known that the status of the former NBU as appropriate and intact has always been a central issue to this matter (See, Position Statements, Ex. P; see also, Petition at Ex. 5, p. 79: para 9(a), p. 82 at para 14(a), p. 84 (affirmative defense of lack of community of interest), p. 86(lack of majority), yet failed to address these issues in its brief to this Court. Tellingly, by electing to ignore the issue (and not disclose them to the Court) the Board does not get to produce new evidence and attach it to the Reply in an effort to rehabilitate the damage cause by their own lack of candor and strategic choice not to address the issue of majority status and appropriateness of the NBU in its moving papers. 21 30 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 38 of 46 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 1 1. The Alleged Harm to OE3 is Purely Speculative. 2 The Board speculates that irreparable harm will result by loss of support of OE3. However, 3 the Board supports this claim with no evidence. 22 Instead, the Board supports these claims by citing 4 cases where those propositions were discussed and supported by evidence. This Court must have 5 admissible evidence of irreparable harm and, in this case, none was provided. In fact, the employee 6 declarations that were provided indicate exactly the opposite. For example, the declaration of Carl 7 Peters discusses that the former NBU employees are mad, scared and “not getting any happier 8 anytime soon,” that all of his crew members are talking to him and that there is union support by 9 people attending meetings and signing cards. App. 2, Ex. 5 at p. 76:1-3 & p. 77:1-22. Rob Carter 10 indicates that there is anxiety in the workplace and people talk to him as the former steward about 11 their issues. App. 2, Ex. 6 at p. 91:1-3. Similar sentiments appear throughout the declarations from 12 the Board. In other words, not only does not one of the declarations claim that support for OE3 is 13 being harmed, the declarations tell the story that some people are upset and still turning to the union 14 and its stewards for support and guidance. Thus, the evidence before this Court does not support a 15 finding of actual harm, much less irreparable harm. 16 2. The Alleged Harm to OE3 is not Irreparable. 17 The NLRB is granted broad powers to remedy violations when a company does not recognize 18 a union in violation of the NLRA. The April 2, 2019 Ridgewood Health Care Center case is 19 particularly instructive. 367 N.L.R.B. 110 (April 2, 2019). Specifically, the underlying events 20 occurred in October of 2013. The NLRB found that the employer was a successor and should have 21 recognized the union in 2013. Thus, the employees in that case had remained unrepresented for 5 22 ½ years. Despite this fact, the NLRB easily crafted appropriate remedies to address its findings. Id. 23 at 121-22. The Board, in its MPA, fails to discuss the broad remedial options available to it, 24 25 26 27 28 If speculation is allowed, one can just as easily postulate that more harm will be done to the support of OE3 if the injunction were to be issued. Specifically, it is reasonable to conclude that support for OE3 will be harmed if employees have the wages and benefits that they have been receiving for 6 months cut because of the Union. Indeed, there may be substantial harm to OE3’s support where employees have their wages and bonuses cut, but the former Barrick employees working alongside them, and doing the exact same jobs, are paid more than them. In other words, the effect of the requested injunction appears more likely to harm OE3 than help it. 22 31 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 39 of 46 1 including forced recognition, backpay and interest, orders to bargain, reinstatement of employees, 2 offering jobs to those that did not elect to accept employment with NMG, postings which explain 3 employee rights and the findings, mandatory meetings, etc. The list is almost endless and effective. 4 The Board had the burden of producing evidence as to why the broad remedial powers of the NLRB 5 would be ineffective in this case. The Board failed to meet its burden. On the other hand, where the 6 Board was able to remedy a similar issue five and a half (5 ½) years after the fact, in this case, the 7 Administrative Law Judge can fashion an appropriate remedy less than one (1) year after the alleged 8 violations. 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 9 3. The Alleged Harm is not Imminent. 10 Any perceived harm is not imminent. Even though OE3 knew that NGM held itself out as 11 non-union, and that it had no duty to recognize or bargain with OE3, as early as June 27, 2019, OE3 12 failed to file a charge until January 2, 2020. Compare, June 27, 2019 Email, Ex. N to Petition at Ex. 13 1(a). 23 Further, as of November 15 (and again on November 19 & December 11) OE3’s own 14 representatives admit they were told NGM would not recognize it when they hired Newmont’s 15 employees on December 23. App. I, Ex. 2 at pp. 225-227); App II, Ex. 4 at p. 16:16-17 (“Our take 16 on it at this point was that there was no way they were going to honor the contract.”) & p. 18:11- 17 14. Despite this, OE3 delayed filing until January 2. The Board, however, delayed filing for an 18 injunction until over 5 months later. Indeed, the Ninth Circuit has noted that a delay is significant 19 if the alleged harm has occurred and the parties cannot be returned to the status quo or if the Board’s 20 final order is likely to be as effective as an order for interlocutory relief. Aguayo v. Tomco 21 Carburetor Co., 853 F.2d 744, 750 (9th Cir. 1988), overruled by on other grounds by Miller v. 22 California Pac. Med. Ctr., 19 F.3d 449 (9th Cir. 1994); see also Angle v. Sacks, 382 F.2d 655, 661 23 (10th Cir. 1967) (“The more time that elapses between the time the incidents occur the less effective 24 25 26 27 28 OE3’s first charge was actually filed on December 13, 2019; however, it was withdrawn by OE3. In that filing, OE3 did not claim that NGM had previously recognized it. Indeed, OE3 admitted under oath that NGM has “refused to recognize the Union.” See Exhibits A and B to NGM’s Answer to Petition for Temporary Injunction. Similarly, in its next charge filed on January 2, 2020, OE3 again stated that NGM has “refused to recognize the Union or the CBA.” See Board’s Ex. 1(a) to Petition for Injunction at p. 2. It was not until it filed its Amended Charge on January 8, 2020 – its third filing - that OE3 made the allegation that NGM had withdrawn recognition. See Board’s Ex. 1(b) to Petition for Injunction at p. 4. 23 32 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 40 of 46 1 injunctive relief becomes, and it becomes increasingly difficult to show it to be a “just and proper” 2 remedy. This could, of course, reach a point where relief should be denied on that ground alone”). 3 The Eighth Circuit even noted that a time lapse of only three (3) months is evidence that the 4 detrimental effects of the alleged violations have already taken their toll on the organizational drive 5 and recognized that it was questionable whether an order of reinstatement would be any more 6 effective than a Board order following trial. Solien v. Merchants Home Delivery Serv., Inc., 557 7 F.2d 622, 627 (8th Cir. 1977). 8 Here, the delay goes all the way back to June 27, 2019, when OE3 first clearly became aware 9 of NGM’s intent not to recognize or bargain with OE3 – a delay of almost a full year. Even if the 10 time is measured from the first charge that was not withdrawn (January 2), the delay is over 5 11 months. 12 Secondly, trial was originally scheduled for June 9, 2020 and may have already resolved the 13 issues now before this Court. However, citing to “technical issues,” the NLRB requested and then 14 rescheduled trial to July 27, 2020. See Exhibit C to NGM’s Answer to Petition for Temporary 15 Injunction. Coincidently, a few days later, the NLRB filed the instant Petition and asserts that OE3 16 and former Newmont employees will suffer imminent irreparable harm if the Court does not reinstate 17 the CBA. See NLRB Memo, at p. 18-19:23-2. The Board’s arguments do not appear consistent 18 with its actions to delay filing for an injunction and then delay the trial. Nevertheless, trial begins on 19 July 27, 2020 and NLRB’s final order is will be more effective than injunctive relief meant to 20 preserve the status quo. See Aguayo, 853 F.2d at 750 (delay is significant if the Board’s final order 21 is likely to be as effective as an order for interim). 22 Third, harm, if any, would have already occurred. There is no imminent additional harm 23 which would be remedied by an injunction. Here, the NBU entire employment with NGM, as the 24 employer, has been without a union, with higher pay and benefits and with promotional and training 25 opportunities that did not exist under the CBA. There is no practical way to undo the integration, 26 higher pay, promotions, new training, new work schedules, reinstate discipline, etc. Even if these 27 things were ordered to be unwound, the time it would take to do it will be months (for many of the 28 33 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 41 of 46 1 items it is likely that they cannot be unwound before the end of 2020 or later) 24 and trial would have 2 already started and, maybe, even completed before the injunctive remedy could be implemented. 3 B. Balance of the Equities is strongly in favor of NGM 4 1. Delay in Filing Petition for Injunction 5 Several courts have found that the NLRB’s delay in pursuing injunctive relief is a factor to 6 be considered when determining whether 10(j) relief is “just and proper.” As a result, NGM 7 incorporates by reference its arguments supra regarding delay and lack of an imminent harm. 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 8 2. The Parties cannot be returned to the Status Quo 9 The Court in Aguayo also noted that delay was significant if the NLRB waited so long to 10 seek injunctive relief such that the parties cannot be returned to the status quo. Id. This is the exact 11 situation NGM and OE3 find themselves. First, OE3 has never represented NGM’s employees. It 12 was only during the MOU Period, while NGM was leasing employees from Barrick and Newmont, 13 that Newmont continued to apply the CBA, because the NBU employees were technically still 14 employed by Newmont. See App. 1, Ex 1 at p. 68-69. However, once all the leased employees from 15 Barrick and Newmont became NGM employees, the status quo has always been that NGM 16 employees were not represented by OE3. In other words, the status quo for NGM and its employees 17 is the absence of union representation. Thus, the Board is asking this Court to force union 18 representation upon NGM for the first time, not reinstate the status quo. 19 3. The Harm To NGM, Employees and the Elko Community Outweighs the Speculative Harm to OE3 20 21 22 23 24 25 26 Without understanding the magnitude of its prayer for relief, the Board requests this Court require NGM to recognize the union and bargain collectively, restore the prior unit’s terms and conditions of employment from Newmont, and comply with the CBA. Petition, at pp. 10-12. However, NGM has initiated several new systems, and processes that render the Board’s requested relief exceedingly difficult and expensive to successfully implement. employees were paid over $5,644,028.99 in paid time off wages (“PTO”). Boman Decl., Ex. C at 27 28 For example, NGM 24 Boman Decl., Ex. C at ¶¶16-20; Bradford Decl., Ex. E at ¶22. 34 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 42 of 46 1 ¶31. The cost of the pension fix would be about $2,250,000 - $2,350,000 and require 3-6 months 2 for one part and 9-14 months for the contribution fix. Nedrow Decl., Ex. F at ¶¶6-13. Short term 3 and long-term disability plans were not provided for under the CBA; thus, status quo would require 4 that NGM employees pay back the 66% percent wage replacement benefits and this is simply not 5 feasible. Id. at ¶¶14-19; see also Connolly Decl., Ex. J at ¶10. The economic impact of that is the 6 repayment of approximately $300,000. Boman Decl., Ex. C at ¶29. Further, if the injunction were 7 in place for three months the lost income for employees on disability (a benefit which is certainly 8 important to them) would be another approximate $150,000. This is not the time to take these 9 important benefits away from these vulnerable employees. Connolly Decl., Ex. J at ¶¶14-17. 10 In addition, the overpayment of wages is estimated to be $2,345,530. Boman Decl., Ex. C at 11 ¶¶27-30. If this is extrapolated weekly over the NBU employees, this means they will have an 12 average pay cut going forward of around $90,212 each week. If the injunction is in place for three 13 months, the harm to employees is approximately $1,082,552. Further, even paying the employees 14 according to the CBA, will require three months to create a new payroll system and cost 15 approximately $200,000. Bourke Decl., Ex. H at ¶14. 16 Given just the quantifiable direct effect, the direct harm to employees and NGM is in excess 17 of $11,800,000. In addition, there will be real effects on NGM production; however, NGM is not 18 able to reasonably estimate those. Bradford Decl., Ex. E at ¶22. 25 Given the multiplier effect of 19 taking money out of the economy by taking money out of wages, repayments and reduced savings, 20 the floor of the monetary harm is around $35,400,000. 26 21 C. Public Interest is not served in if the Injunction is issued 22 “In exercising their sound discretion, courts of equity should pay particular regard for the 23 24 25 26 27 28 There will be a significant impact on management because former Barrick managers are not familiar with the rules and procedures required by the CBA. Boman Decl., Ex. C at ¶¶16, 20. 25 Numerous studies support that there is a multiplier effect of around 3 times for money taken out of local businesses. https://www.amiba.net/resources/multiplier-effect/. Thus, given NGM’s status in the local Elko economy, this effect could be larger. The initial fears of NGM, that the harm would exceed $100 million have been ameliorated, as the additional time to respond to the injunction allowed it to more carefully analyze the impact. However, the impact is clearly still large and will greatly affect employees and the local Elko economy. 26 35 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 43 of 46 1 public consequences in employing the extraordinary remedy of injunction.” Winter v. Nat. Res. Def. 2 Council, Inc., 555 U.S. 7, 24, 129 S. Ct. 365, 376–77, 172 L. Ed. 2d 249 (2008). NGM has discussed 3 above the status quo is non-union status, the impact such an injunction would have on it compared 4 to the purely speculative harm to OE3, as well as the broad remedies available to the Board should 5 it prevail at trial. However, what has not been discussed is the profound impact the requested 6 injunction would have on the employees in question. The former NBU employees have just 7 undergone a confusing and stressful employment change. However, since December 23, 2019 8 employees have had stable pay and benefits under NGM. Granting the injunction would financially 9 harm most of them, at a time when COVID-19 and all of the related economic and social impacts 10 are greatest. For example, virtually all of the former Newmont BU employees make a higher hourly 11 wage with NGM than they made with Newmont. The Court is asked to consider the severe impact 12 that reduced income will have on over 1,100 former NBU employees during this precarious financial 13 time. In addition, as mentioned previously, NGM is one of the largest employers in Elko County. 14 Thus, reduced income for more than a thousand citizens will have an impact on the broader Elko 15 economy. These negative impacts on individuals and Elko county is not in the public interest, 16 particularly when trial is set to proceed on July 27, 2020. 17 In addition, as several of the declarations attached hereto demonstrate, there will be 18 substantial negative impact on former Newmont employees. For example, termination of long term 19 disability (which will also harm the former Newmont employees who will lose their benefits because 20 this benefit was not provided by Newmont), loss of productive time spent by employees un-winding 21 what has been the status quo since December of 2019, etc. Bourke Decl., Ex. H at ¶15-16; see also 22 Boman Decl., Ex. C at ¶¶17-20; Bradford Decl., Ex. E at ¶22. It is not in the public interest to 23 impose an injunction that will have broad negative consequences on employees and the public. 24 Finally, given the impact that COVID-19 has had on the economy and jobs, because of its 25 functional integration of employees has been able to avoid closing mills and preserve employment. 26 Stated simple, this is not the time to send a further financial shock to these employees. 27 The Board submitted no evidence or argument about the harm on employees, third parties, 28 the Elko economy, or members of the public who are shareholders of Barrick and Newmont. On the 36 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 44 of 46 1 other hand, the evidence from NGM clearly establishes a negative impact on the public interest. 2 VI. 3 4 5 6 7 8 9 CONCLUSION For all the foregoing reasons, the injunction should be denied. DATED this 26th day of June, 2020. By: /s/ Anthony L. Hall . ANTHONY L. HALL, ESQ. JEREMY B. CLARKE, ESQ. SIMONS HALL JOHNSTON PC Attorneys for Respondent Nevada Gold Mines LLC dba Nevada Gold Mines 10 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 37 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 45 of 46 1 2 3 4 5 6 7 8 9 10 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE Pursuant to NRCP 5(b), I certify that I am an employee of SIMONS HALL JOHNSTON PC, over 18 years of age, and that on this date I caused to be served a true copy of the foregoing MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO PETITION FOR INJUNCTION UNDER SECTION 10(j) OF THE NATIONAL LABOR RELATIONS ACT on all parties to this action by the method(s) indicated below: X . I hereby certify that on the date below, I electronically filed the foregoing with the Clerk of the Court by using the ECF system which served the following registered parties electronically: Coreen Heather Kopper National Labor Relations Board, Region 32 1301 Clay Street, Room 300 N Oakland, CA 94612-5211 510-671-3031 Email: coreen.kopper@nlrb.gov Donal Criss Parker National Labor Relations Board, Region 32 1301 Clay Street, Suite 300N Oakland, CA 94612 510-671-3035 Email: criss.parker@nlrb.gov Attorneys for Petitioner Andrea Jeanne Driggs Perkins Coie, LLP 2901 N. Central Avenue Ste. 2000 Phoenix, AZ 85012 602-351-8000 Email: adriggs@perkinscoie.com Samuel Jackson Perkins Coie 1201 Third Ave Ste 4900 Seattle, WA 98101-3099 206-359-8000 Email: SJackson@perkinscoie.com Gavin C Jangard Newmont USA LTD 1655 Mountain City Hwy Elko, NV 89801 775-778-2606 Email: gavin.jangard@newmont.com Attorneys for Party-In-Interest Newmont USA Limited 38 Case 3:20-cv-00331-LRH-WGC Document 27 Filed 06/26/20 Page 46 of 46 1 2 3 4 I declare under penalty of perjury under the laws of the United States of America and the State of Nevada that the foregoing is true and correct, and that this declaration was executed on June 26, 2020. /s/ Jennifer L. Smith . An Employee of Simons Hall Johnston PC 5 6 7 8 9 10 6490 S. McCarran Blvd., Ste. F-46 Reno, NV 89509 Phone: (775) 785-0088 SIMONS HALL JOHNSTON PC 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 39