Small v. AVANTI HEALTH SYSTEMS, LLC
2011 U.S. App. LEXIS 22050
| 9th Cir. | 2011Background
- CHHP bought Community Hospital from Karykeion in March 2010 and began operating it the same week without recognizing the CNA as bargaining representative.
- Karykeion’s CNA membership was reflected on a March 25 employee register; CHHP later claimed CNA did not represent a majority based on March 26–April 4 payroll.
- NLRB regional director sought a §10(j) injunction alleging CHHP, as successor, violated §§8(a)(1) & 8(a)(5) by refusing to recognize/bargain with CNA.
- District court granted a Winter-based preliminary injunction, finding likelihood of success and irreparable harm.
- ALJ and district court both accepted that CHHP had a substantial and representative RN complement on March 26, and that 30 of 47 RNs were incumbent members of CNA from Karykeion.
- Judge's review under §10(j) hinges on whether the district court abused its discretion in applying Winter factors to a successor-employer scenario.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CHHP is a successor employer obligated to bargain with CNA | Director/NA agrees CHHP is successor and CNA incumbents exceed threshold | CHHP contends CNA did not represent a majority of CHHP RNs on March 26 | Yes; CHHP is a successor obligated to bargain with CNA. |
| Whether on March 26 CHHP employed a substantial and representative RN complement | 47 RNs on payroll; majority were CNA incumbents | Some hired RNs not reporting; counts disputed | CHHP employed a substantial and representative complement on March 26. |
| Whether incumbents formed a majority of the CHHP bargaining unit on March 26 | 30 incumbents shown by comparing CHHP list to Karykeion CNA unit | Arguments about counting methods | Yes, incumbents comprised a majority. |
| Irreparable harm and likelihood of success standard under §10(j) | Failure to bargain risks irreparable harm to union representation and industrial peace | Arguments about timing and bankruptcy impact | District court did not abuse discretion; likelihood of irreparable harm and public interest satisfied. |
| Balance of equities and public interest under Winter | Maintaining bargaining obligation protects remedial power and industrial peace | Bargaining order may threaten post-bankruptcy viability | Balance weighed in favor of injunction; public interest supported. |
Key Cases Cited
- Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (U.S. 1987) (test for successor-employer incumbency and majority rule; controlling standard for determining majority in unit; substantial continuity required)
- Winter v. NRDC, 555 U.S. 7 (U.S. 2008) (establishes the four-factor test for preliminary injunctions)
- NLRB v. Katz, 369 U.S. 736 (U.S. 1962) (duty to bargain is defined by meet-and-confer in good faith; refusal to negotiate is per se failure to bargain)
- Frankl v. HTH Corp., 650 F.3d 1334 (9th Cir. 2011) (clarifies likelihood of success and irreparable harm standards in §10(j) context)
- McDermott v. Ampersand Pub., LLC, 593 F.3d 950 (9th Cir. 2010) (discusses deference to Board when seeking §10(j) injunction and timing considerations)
- Dunn v. Stephen Dunn & Assoc., 241 F.3d 652 (9th Cir. 2001) (illustrates Winter framework and irreparable harm considerations)