Cornele Overstreet v. Shamrock Foods Company, 679 F. App'x 561

Shamrock Foods appealed a district court's Section 10(j) temporary injunction obtained by the NLRB Regional Director alleging multiple unfair labor practices during a union organizing campaign.
The injunction barred coercive employer conduct and speech: threats, interrogation about union sympathy, surveillance or creating impression of surveillance, promising or granting benefits to influence union activity, soliciting grievances as a quid pro quo, selective enforcement of solicitation rules, and discriminatory discipline/termination.
Employee Thomas Wallace accepted a private settlement (payment in lieu of reinstatement) and waived reinstatement, but the Board retained authority to order reinstatement; the Regional Director continued to seek §10(j) relief regarding Wallace’s discharge.
The district court found the Regional Director likely to succeed on the merits as to at least one unfair labor practice in each category and found evidence of diminished union support and discrimination sufficient to show likely irreparable harm.
The court weighed hardships and the public interest and concluded the injunction (which permits noncoercive speech) was appropriate to preserve the Board’s remedial power while it proceeds.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Mootness of relief relating to Wallace’s discharge	Wallace’s settlement and waiver moots the Board’s request for reinstatement/relief	Settlement extinguished any live controversy regarding Wallace's discharge	Not moot: Board retains discretion to seek remedies; §10(j) relief remains available
Standard for §10(j) injunction when employer speech implicated	Deference to Regional Director and ordinary §10(j) equitable standard suffices	Overstreet heightened standard applies because injunction affects speech	Ordinary §10(j) standard applied; Overstreet not required because injunction targets coercive (unprotected) speech
Likelihood of success on merits (unfair labor practices)	Evidence (affidavits, transcripts, ALJ testimony) shows numerous unlawful practices (threats, interrogation, benefits, surveillance, discrimination)	Employer contends record does not support unlawful practices across categories	Court found sufficient evidence of at least one unlawful act in each alleged category; likely success on merits
Irreparable harm, balance of hardships, public interest	Diminished card signing/meeting attendance and discharge of supporters show irreparable injury to organizing; public interest favors preserving Board remedy	Injunction unduly burdens employer speech/practices	Irreparable harm likely; balance and public interest favor injunction because it stops coercion and preserves Board’s remedial ability

Foster v. Carson, 347 F.3d 742 (9th Cir.) (mootness requires no possibility of obtaining relief)
Ruvalcaba v. City of Los Angeles, 167 F.3d 514 (9th Cir.) (mootness principles)
NLRB v. Int’l Bhd. of Elec. Workers, Local Union 112, 992 F.2d 990 (9th Cir.) (Board not required to defer to private settlements)
McDermott v. Ampersand Publ’g, LLC, 593 F.3d 950 (9th Cir.) (purpose of §10(j) is to preserve Board’s remedial power)
Overstreet v. United Brotherhood of Carpenters, 409 F.3d 1199 (9th Cir.) (heightened injunction standard when constitutionally protected speech may be enjoined)
Operative Plasterers’ & Cement Masons’ Int’l Ass’n Local 200 v. ... , 611 F.3d 483 (9th Cir.) (discussion of heightened standard and §10(j) relief)
NLRB v. Gissel Packing Co., 395 U.S. 575 (U.S.) (coercive employer speech is not protected)
Chamber of Commerce v. Brown, 554 U.S. 60 (U.S.) (employers have First Amendment right to noncoercive speech about unions)
Frankl v. HTH Corp., 650 F.3d 1334 (9th Cir.) (standards for what is "just and proper" under §10(j))
Small v. Avanti Health Sys., LLC, 661 F.3d 1180 (9th Cir.) (diminished union support can show irreparable harm)
Pye v. Excel Case Ready, 238 F.3d 69 (1st Cir.) (discharge of active union supporters risks irreparable harm)