REMEDIES FOR UNFAIR PRACTICES; INJUNCTIVE RELIEF – Standards for Obtaining Injunctive Relief

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Injunctive relief is appropriate where the Board concludes that: (1) reasonable cause exists to believe an unfair practice has been committed; and (2) the injunctive relief is just and proper. Injunctive relief must be “just and proper.” That standard is met where there exists a probability that the purposes of the MMBA will be frustrated unless temporary relief is granted or the circumstances of a case create a reasonable apprehension that the efficacy of the Board’s final order may be nullified, or the administrative procedures will be rendered meaningless. Absent temporary relief to restore and maintain the status quo ante, PERB’s task of adjudicating and remedying alleged unfair practices is in severe jeopardy. An employer’s failure or refusal to bargain is likely to irreparably injure union representation. (Small v. Avanti Health Systems, LLC (9th Cir. 2011) 661 F.3d 1180, 1191, quoting Frankl v. HTH Corp. (9th Cir. 2011) 650 F.3d 1334, 1362.) The Board’s traditional make-whole remedies do not match the full range of harms flowing from the violation. A refusal to bargain, implicit in an employer’s withdrawal of recognition, gives rise to myriad harms. (Small v. Avanti Health Systems, LLC (9th Cir. 2011) 661 F.3d 1180, pp. 1191-1193 (Avanti).) Absent bargaining, there will be no negotiated agreement or MOU. Employees are thus denied the opportunity to achieve economic and non-economic benefits which a negotiated agreement might contain. Such harm is irreparable, since the Board’s traditional make whole authority does not extend to economic or non-economic benefits that might have been obtained had the employer recognized and negotiated an MOU with the employees’ representative. Moreover, even if such make whole relief could be awarded, the employees would be less than whole since the “right to enjoy the benefits of union representation is immeasurable in dollar terms once it is delayed or lost.” (Avanti, at p. 1192.) The efficacy of the Board’s final order is likewise nullified by the necessary delay accompanying PERB’s administrative procedures, during which an unjustly ousted union suffers loss of support. As time passes, the benefits of representation are lost and the spark to organize is extinguished. The deprivation to employees from the delay in bargaining and the diminution of union support is immeasurable. (Small v. Avanti Health Systems, LLC (9th Cir. 2011) 661 F.3d 1180, 1192.)