No violation of NLRA for failure to end restraining order against union activist

By G. Phillip Shuler

Recently, the U.S. Ninth Circuit Court of Appeals, in Carpenters Local 1109 v. NLRB, upheld a decision by the National Labor Relations Board that an employer did not violate Section 8(a)(1) of the National Labor Relations Act by failing to end a temporary restraining order against a union activist.

In 2004, the board found that Champion Home Builders, based in Lindsay, Calif., did not violate the NLRA by maintaining a restraining order against a member of the Carpenters and Joiners of America Local 1109.

Champion had terminated Ramon Rivas after he posted a letter at the jobsite complaining about Champion's bonus policy. Before Champion terminated Rivas, the company learned that some of his co-workers had complained about him for interrupting their work.

Rivas also had allegedly threatened violence against company managers and his co-workers. Champion later obtained a restraining order against Rivas when he attempted to contact company officials at the worksite.

The restraining order prohibited Rivas from entering Champion's premises and it prohibited him from contacting Champion's employees during working hours.

Thereafter, the Union filed an unfair labor practices charge with the Board and the General Counsel issued a complaint for unlawful discharge in violation of Section 8(a)(1). After Champion declined to withdraw the restraining order, the General Counsel issued an amended complaint alleging that Champion also violated Section 8(a)(1) for not staying or seeking dissolution of the restraining order.

A divided Board found that Champion had illegally fired Rivas, but it also found that the state court lawsuit that led to the restraining order was not preempted by the NLRA. The majority concluded that nothing in the NLRA prevented the state court from enjoining Rivas from engaging in acts of intimidation or violence.

The majority balanced the need of the state to prohibit violence and the Board's prerogative to remedy unfair labor practices in finding that Champion should not be denied the right to maintain a state court restraining order. Thus, the state court lawsuit that led to the restraining order was not preempted based upon the issuance of the Board's complaint that alleged unlawful discharge.

The Board reinstated Rivas and directed Champion to withdraw those portions of the restraining order that prevented him from entering the worksite and communicating with co-workers. Nonetheless, the Board did not require Champion to withdraw portions of the restraining order that prohibited Rivas from threatening, harassing or disturbing the peace of the property of persons named in the restraining order.

In its review of the Board's decision, the Ninth Circuit held that the state had the authority to enjoin Rivas from engaging in "violent" behavior. It left undisturbed the Board's finding that Champion did not violate the NLRA when Champion did not stay or seek removal of the temporary restraining order.

Thus, the balance struck by the Board in pursuing its prerogative to remedy unfair labor practices and the state's need to prohibit violence remained intact.