language of the statute in providing that the Court has jurisdiction to grant any temporary relief it considers just and proper. This sequence of words ("any," "it considers," "just and proper") is consistent with notions of discretion and equity. This view, moreover, is supported by the only direct authority located construing section 7123(d). In a 1981 decision, this Court stated: "By directing that the District Court shall grant injunctive relief only when it is 'just and proper' to do so, section 7123 of title 5 incorporates standards similar to those which are traditional to courts of equity." United States v. PATCO, Inc., 524 F. Supp. 160, 163 n. 3 (D.D.C. 1981).
The Court is mindful of International Union v. NLRB, 145 U.S. App. D.C. 384, 449 F.2d 1046 (1971), cited by the Authority, which construes Section 10(j) of the NLRA. That case indicates that the NLRB in seeking injunctive relief to compel bargaining would not need to show "irreparable injury" because enforcement of an employer's obligation to bargain is itself an adequate public purpose. Id. at 1051. International Union makes it easier for the Authority to satisfy one major element in the traditional equitable equation, but it does not preclude the Court from considering all of the factors in deciding whether a temporary injunction is "just and proper" in the circumstances of this case.
Weighing all of the circumstances, this Court believes that the injunction sought is "just and proper" in this case. This judgment rests on a set of considerations, including the traditional equitable factors and others peculiar to this case. Although the balance is a close one, the Court finds that the case for interim relief has been established.
First, for the reasons set forth in detail in the "probable cause" section of this Opinion, the Court believes that the "likelihood of success" criteria weighs in favor of the Authority. In light of the earlier discussion of the merits, no additional analysis is necessary here.
Second, looking at the potential harms and benefits to both sides, although the overall balance is quite close, the Court believes that balance is at least consistent with granting relief. Both sides have articulated potential short-term harms that are legitimate but not overwhelming. The Authority and Union have argued that bargaining unit employees are being harmed by a lack of Union representation during this interim period at significant events such as transfers, terminations, forced details, reassignments, office closures and the like, at which the Union might play a significant role. Although the Authority has documented that such events are indeed occurring without Union participation, see, e.g., Affidavit of Richard H. Ruth; Affidavit of Carl S. Deck; Declaration of David M. House, the effect that the Union would have on these events even if it were permitted to participate involves some degree of speculation. It has also been argued that the Union and the employees are being injured in the short term by the loss of other entitlements such as dues withholding and the right to obtain information from the employer.
On the other side of the scale, the FDIC asserts that it will be harmed in the short term by the immediate commitment of time and resources, and the accompanying disruption of its day-to-day affairs, that would be required in order for it to comply with an injunction. The fact that, as the Court found in an earlier portion of this Opinion, the "essential functions" of the FDIC will not be curtailed does not, of course, mean that injury to the FDIC is irrelevant to the "balance of harms" analysis. However, the Court does not, for the reasons already discussed, believe that the commitment of these additional resources is an overwhelming burden.
With respect to the long-term consequences of the grant or denial of interim relief, both sides have articulated more substantial concerns, but these concerns that are necessarily infused with a substantial amount of speculation. The Union has expressed considerable concern that its majority support among employees may be eroded if it is not permitted to begin representation of and bargaining on behalf of the employees immediately. The Union observes that nearly a year has passed since its certification by the FLRA, and yet it has not been able to take any action on behalf of the bargaining unit employees; the Union further observes that if interim relief is not ordered there will be an additional perhaps lengthy delay before the employees begin to see any results of representation, during which further erosion may occur. This is a weighty concern that has been a traditional factor in courts' analysis under section 10(j) of the LMRA,
but one that by its very nature is impossible to quantify.
On the other side, the FDIC is concerned that it may, either through negotiation of a collective bargaining agreement or through imposition of conditions by the Federal Service Impasses Panel, become locked into a contractual relationship with the employees from which for psychological reasons it could not later retreat, despite a legal right to do so, if and when the election were set aside. This concern, however, is tempered by the fact that by the FDIC's admission it could take as long as two years to negotiate a collective bargaining agreement, and by the fact that it is unrealistic to suppose that negotiations will reach an impasse on many issues and that the Impasse Panel will then impose many conditions in the relatively brief period of time it should take the Authority to reach a final decision.
In sum, therefore, although it is not easy to tell who would be disadvantaged more -- the FDIC by the grant, or the Union by the denial, of an injunction -- the Court believes that the Union will be injured by a denial and that this injury is not exceeded by the harm to FDIC from granting the relief.
Third, the Court agrees with the Authority and Union that there is a public interest in favor of union representation when the union has won the support of the employees in a fair election contest. The cases interpreting the LMRA make it clear that Congress considered this value to be an important one, see International Union, 449 F.2d at 1051, and there is no reason to believe that this interest deserves any less weight where federal employment is at issue. It is of course true that the legitimacy of the representation election is the very issue being challenged. Nevertheless, the Court's determination that there is probable cause in this case means that some weight properly ought to be given to the public interest in Union representation and bargaining.
Finally, the Court has given consideration to the notion that a substantial change in the status quo -- that is, the existing state of affairs, which involves no representation or bargaining -- might seem unnecessary in light of the fact that the unfair labor practice charge already has been submitted by stipulated record to the Authority, that the Authority is likely to reach a final decision within six months (allowing the Authority immediately to seek interim relief in the Court of Appeals pursuant to 5 U.S.C. § 7123(b)), and that the timing of a final decision is now under the Authority's control. Although this argument is not without force, the Court believes that it does not outweigh the alignment of considerations already described that favor injunctive relief: the existence of probable cause, reinforced by the decisions of this Circuit that illuminate the standard of review that is likely to be applied to the final decision; the absence of any significant threat to the ability of the agency to function; the Court's judgment that the traditional equities point to an injunction, although the balance may be close; and the suggestion in this Circuit's International Union decision that the public interest is reflected in Congress' concern that collective bargaining rights be respected where the employees have voted for union representation.
Accordingly, a separate Order is attached hereto granting the requested temporary injunction, and enjoining defendant Federal Deposit Insurance Corporation, until final resolution of the unfair labor practice charge by the Federal Labor Relations Authority, from (1) continuing to refuse to recognize the Union as the certified exclusive representative of the bargaining units hereinabove described, and (2) continuing to refuse to accord to the Union all rights and entitlements to which such exclusive bargaining representatives are entitled under the Federal Service Labor-Management Relations Act or any other applicable law. However, the relief granted in the Order will be stayed for a period of ten days from the date of the Order to allow the FDIC to appeal this decision to the Court of Appeals and to seek a stay from that Court pending its decision. In the event that such a stay by the Court of Appeals is sought within ten days of the date of this Order, the stay issued by this Court shall remain in effect until the Court of Appeals grants or denies the stay request.
ORDER - April 10, 1991, Filed
This matter comes before the Court on plaintiff's motion for a temporary injunction. The Court has reviewed the memoranda and affidavits in support and opposition thereto, and the entire record herein. Based on the explanation, findings of fact and conclusions of law set forth in the Court's Memorandum Opinion issued on this date, which is hereby incorporated herein, it is
ORDERED that plaintiff's motion for a temporary injunction is GRANTED; and it is further
ORDERED that, until the Federal Labor Relations Authority ("Authority") issues a final order on the unfair labor practice charge now pending before it against the Federal Deposit Insurance Corporation ("FDIC"), the FDIC is hereby enjoined from
(1) continuing to refuse to recognize the National Treasury Employees Union ("Union") as the exclusive representative of the bargaining units for which the Union was certified by the Authority on December 28, 1990, and
(2) continuing to refuse to accord to the Union all rights and entitlements to which such exclusive bargaining representatives are entitled under the Federal Service Labor-Management Relations Act or any other applicable law; and it is further
ORDERED that the relief granted in this Order is hereby STAYED for a period of ten days from the date of this Order to allow the FDIC to appeal this Order to the Court of Appeals and to seek a stay from that Court pending its decision. In the event that such a stay by the Court of Appeals is sought within ten days of the date of this Order, the stay issued by this Court shall remain in effect until the Court of Appeals grants or denies the stay request.
IT IS SO ORDERED.