54 F.4th 1101
9th Cir.2022Background
- Nexstar acquired KOIN‑TV (Portland) and continued bargaining with NABET Local 51; the parties negotiated intermittently from 2017–2019 and disputes arose over dues collection, initiation fees, and healthcare.
- On January 8, 2020 Nexstar withdrew recognition of the union and made unilateral changes; the union assembled a majority‑support petition (certified by a neutral third party) but Nexstar refused to recognize or bargain.
- The NLRB Regional Director filed consolidated unfair‑labor‑practice charges; an ALJ later found Nexstar violated §§ 8(a)(1) and 8(a)(5); the Board affirmed that decision in its final order.
- While the administrative case was pending, the Regional Director sought a § 10(j) preliminary injunction in district court (filed Feb. 2, 2021) to reinstate recognition and preserve bargaining while the Board adjudicated the merits.
- The district court found likelihood of success on the merits and—relying on an inference from Frankl—granted the § 10(j) injunction despite stating the record lacked direct evidence that union support had dwindled.
- After the Board issued its final order, the Ninth Circuit considered (1) whether the appeal was moot and (2) whether the district court abused its discretion by treating Frankl as imposing a mandatory presumption of irreparable harm; the panel held the appeal was not moot and vacated the injunction for legal error (dissent would have found the appeal moot and affirmed).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness / jurisdiction over appeal | Regional Director: § 10(j) appeals are "capable of repetition, yet evading review" so the Board’s final order does not render the appeal moot | Nexstar: Board’s final order moots the § 10(j) appeal; no live controversy remains | Majority: exception applies (appeal not moot) because § 10(j) proceedings typically evaded review and similar disputes will reasonably recur; dissent would dismiss as moot |
| Legal standard for irreparable harm in § 10(j) cases | RD: Frankl permits inference of likely irreparable harm from certain unfair labor practices (e.g., refusal to bargain) without independent factual proof | Nexstar: Courts may not treat that inference as a mandatory presumption shifting the burden to the employer | Court: Winter/eBay/Monsanto prohibit categorical presumptions; Frankl permits only a discretionary, permissible inference (not mandatory) based on the record |
| Whether district court applied correct standard (permissive inference vs. mandatory presumption) | RD: district court properly applied Frankl’s inference given likelihood of success and absence of contrary evidence | Nexstar: district court treated the inference as a mandatory presumption and shifted burden to Nexstar to rebut | Court: district court misread Frankl and imposed a mandatory presumption of irreparable harm; that was legal error and an abuse of discretion |
| Remedy / disposition | RD: injunction should stand to protect union representation while Board completes adjudication | Nexstar: injunction improperly granted and should be vacated | Court: vacated the district court’s § 10(j) preliminary injunction for having applied an erroneous legal standard (each side bears its own costs); Judge Fletcher dissented |
Key Cases Cited
- Frankl v. HTH Corp., 650 F.3d 1334 (9th Cir. 2011) (permits district courts to draw permissible inferences of irreparable harm from the nature of certain unfair‑labor practices but rejects an automatic presumption)
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (four‑factor test for preliminary injunctions; rejected categorical presumptions)
- Miller ex rel. NLRB v. Cal. Pac. Med. Ctr., 19 F.3d 449 (9th Cir. 1994) (§ 10(j) injunction appeals often evade review; precedent on mootness exception)
- Johansen ex rel. NLRB v. Queen Mary Rest. Corp., 522 F.2d 6 (9th Cir. 1975) (Board’s final decision generally renders § 10(j) injunction appeals moot)
- Small v. Avanti Health Sys., LLC, 661 F.3d 1180 (9th Cir. 2011) (discusses irreparable harm and § 10(j) injunction standards)
- Operative Plasterers & Cement Masons’ Int’l Ass’n Loc. 200 v. NLRB, 611 F.3d 483 (9th Cir. 2010) (rejection of presumptions of irreparable harm post‑Winter)
- eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) (no categorical rule granting injunctions; traditional equitable test applies)
- Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) (rejects presumptions in the injunctive‑relief context; courts must apply four‑factor test)