RONALD K. HOOKS, Regional Director of the Nineteenth Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD v. NEXSTAR BROADCASTING, INC., DBA KOIN-TV
No. 21-35252
UNITED STATES COURT OF APPEALS
DEC 5 2022
D.C. No. 3:21-cv-00177-MO
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted October 6, 2021
Portland, Oregon
Before: William A. Fletcher, Sandra S. Ikuta, and Daniel A. Bress, Circuit Judges.
Opinion by Judge Ikuta;
Dissent by Judge W. Fletcher
SUMMARY*
National Labor Relations Act / Mootness
The panel vacated the district court‘s order granting a petition of the Regional Director of the National Labor Relations Board (“Board“) for preliminary injunctive relief under
Based on a finding that the Regional Director was likely to succeed on the merits of the complaint and applying an inference of likely irreparable harm based on Frankl ex rel. NLRB v. HTH Corp., 650 F.3d 1334 (9th Cir. 2011), the district court granted a preliminary injunction. After the district court issued the preliminary injunction, an administrative law judge ruled in favor of the Regional Director, finding that Nexstar had violated
The panel first considered whether it had jurisdiction over the case. Because the Board has resolved the merits of the unfair labor practice complaint, the appeal of the district court‘s grant of a preliminary injunction under
The panel next considered whether the district court abused its discretion in granting the preliminary injunction. Under Winter v. NRDC, 555 U.S. 7 (2008), one factor is whether the Regional Director was likely to suffer irreparable harm in the absence of preliminary relief. The panel noted that this court has rejected a presumption of irreparable harm in the
The panel held that the district court improperly determined that Frankl required it to presume irreparable harm based on its finding that the Regional Director had a likelihood of success on the merits on his claims in violation of
Judge Fletcher dissented. He agreed with the Board that this appeal was moot, and there was no jurisdiction. The exception to mootness invoked by the majority did not apply to the appeal because it was far too fact-intensive to be capable of repetition in the manner required by the exception. If he were to reach the merits, Judge Fletcher would affirm the district court. The district court faithfully followed Frankl when it inferred, absent contrary evidence, that Nexstar‘s violation of
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
COUNSEL
Charles P. Roberts III (argued), Constangy, Brooks, Smith & Prophete LLP,
Jenevieve Louise Frank (argued) and Elizabeth DeVleming, Attorney; Paul A. Thomas, Trial Attorney; Laura T. Vazquez, Deputy Assistant General Counsel; Richard J. Lussier, Assistant General Counsel; Richard A. Bock, Associate General Counsel; Iva Y. Choe, Acting Deputy General Counsel; Peter Sung Ohr, Acting General Counsel; National Labor Relations Board, Washington, D.C.; United States National Labor Relations Board, Seattle, Washington; for Petitioner-Appellee.
IKUTA, Circuit Judge:
In evaluating a petition for injunctive relief pursuant to
I
A
The NLRA makes it unlawful for an employer to engage in unfair labor practices, including the failure to bargain in good faith.
Under
At the administrative hearing, the parties may call and examine witnesses, introduce
While charges are pending, the Regional Director may (with the approval of the Board‘s General Counsel) petition a federal district court for “appropriate temporary relief or [a] restraining order” before the final adjudication of the charge under
of
B
Nexstar Broadcasting, Inc. owns and operates numerous local television stations. In January 2017, Nexstar acquired KOIN-TV, a local television station in Portland, Oregon, from LIN Television Corporation (LIN). At the time of the acquisition, employees at KOIN-TV in two bargaining units were represented by the Broadcasting and Cable Television Workers Sector of the Communications Workers of America, Local 51, AFL-CIO (referred to here as Local 51 or the union), pursuant to a collective bargaining agreement (CBA). When it acquired KOIN-TV, Nexstar adopted the CBA between Local 51 and LIN. By its terms, the CBA was effective from July 29, 2015, to July 28, 2017. The CBA was extended by agreement, but finally expired in September 2017.
Nexstar and Local 51 began negotiating for a new agreement in June 2017. From June 2017 until December 2019, the parties met for over 20 two-day bargaining sessions. A federal mediator assisted with the negotiations between March 2018 and December 2019. By December 2019, many issues had been resolved, but several fundamental disagreements remained. Among other items, Nexstar would not agree to collect the union‘s membership dues and
compared to the initiation fees of other unions. The parties also could not agree on the scope of healthcare coverage.3
Negotiations made little progress through 2019. On January 8, 2020, Nexstar told the union it was withdrawing its recognition of Local 51, for both bargaining units, due to Nexstar‘s “good faith, reasonable belief” that Local 51 no longer enjoyed the majority support of the employees in either bargaining unit at KOIN-TV. Nexstar concluded, based on multiple conversations with employees, that 14 out of the 27 employees in one bargaining unit, and at least 6 out of the 11 employees in the other bargaining unit, did not support Local 51. On the same day, Nexstar removed Local 51‘s bulletin boards. Nexstar also told employees in the
two bargaining units that it intended to give them a 1.5% wage increase after 45 days.4
In February 2020, Local 51 began gathering evidence to demonstrate that the union still retained majority support. Ellen Hansen, a union representative, began asking employees to sign a petition in support of the union, but a Nexstar manager allegedly interfered with her activities by interrupting her and telling her not to talk about the union or to hand out union bulletins. According to the Regional Director, “in the wake of respondent‘s abrupt withdrawal of recognition and even its threats” that employees could not talk about the union or distribute union bulletins, other “employees were very concerned that they could be retaliated against or disciplined unlawfully.” Therefore, “while almost all employees were willing to sign and signify their continued support for the union, many employees expressed to [Hansen] that they would only do so if their names were anonymous.” Despite these employee concerns, and in the face of alleged anti-union intimidation efforts, Local 51 stated that it collected signatures—from 19 out of the 27 employees in one bargaining unit, and 7 out of the 11 employees in the second bargaining unit—for a petition supporting the union. Because employees had
expressed a fear of retaliation from Nexstar, Local 51 did not provide the signatures to Nexstar. Instead, the union asked a Catholic priest to certify that the petition contained the signatures of a majority of employees in each bargaining unit.
C
In response to the union‘s unfair labor practice charges, the Regional Director filed a consolidated administrative complaint against Nexstar with the Board on June 30, 2020, alleging, among other charges, that Nexstar had violated
to working conditions, and coercing employees. The ALJ ruled in favor of the Regional Director on June 11, 2021.5
On February 2, 2021, while the matter was pending before the ALJ, and approximately 13 months after Nexstar withdrew its recognition of Local 51, the Regional Director filed a petition in district court for a preliminary injunction pursuant to
At the hearing on the petition, the district court walked through the criteria for granting the injunctive relief requested under
On the first factor, likelihood of success on the merits, the district court stated that the Regional Director was likely to succeed on his claim that Nexstar violated the NLRA in withdrawing recognition of the union without objective evidence that the union had lost majority support, and by making unilateral changes in employment conditions. The district court also stated that the Regional Director had raised serious questions going to the merits that Nexstar violated the NLRA in discouraging concerted action.
The court spent little time on the other two factors. Regarding the third factor, balance of the equities, the court determined that if the Regional Director showed irreparable harm, he also showed the equities weighed in his favor. Because Nexstar had not shown any equities weighing in its favor, and given the likelihood of success on the merits, the court stated that this factor favored the Regional Director. As to the fourth factor, the public interest, the court held that the public interest probably did not favor either side, but it noted that the Regional Director‘s 13-month delay between the unfair labor practice (Nexstar‘s withdrawal of union
The district court had more difficulty with the second factor, irreparable harm. As the district court put it, the Regional Director‘s theory of irreparable
harm was that, absent an order reinstating the union, the Board would be unable to issue an effective remedial order at the end of the Board proceedings, because during the intervening period, there could be such a loss of employee support for the union that a majority of employees would no longer want the union to be reinstated. In order to evaluate this claim of irreparable harm, the district court asked the Regional Director for evidence that employee support for the union was dwindling.
In response to this request for evidence, the Regional Director pointed to Hansen‘s testimony that after Nexstar withdrew its recognition of the union, employees who signed the petition in support of the union were fearful of retaliation. The district court did not find this evidence persuasive because Hansen‘s testimony showed that the employees were merely hiding their strong support for the union. The Regional Director ultimately acknowledged that he had testimonial evidence only of loss of open support of the union.
The court then explained what evidence of dwindling support of the union might look like. First, the Regional Director could have submitted two affidavits: “one that says that support dropped, and another that says that the reason it dropped was because of loss of union recognition.” Second, the Regional Director could have supplemented the trial record “with some employee who says, ‘You
know, now a year has gone by, and now I really don‘t need the union anymore.‘” The court also noted that it would have been simple “to actually have a percipient witness” or affiant making such a statement.
The Regional Director acknowledged he had no evidence or statements from witnesses of the sort requested by the court. Instead, the Regional Director asked the court to make the inference of irreparable harm suggested by certain Ninth Circuit cases. According to the Regional Director, the Ninth Circuit has held there is an inference that an employer‘s refusal to engage in bargaining will likely result in irreparable harm to employee support for their union. The Regional Director asked the court to rely “on the Board‘s assumptions and even the Ninth Circuit‘s assertion that there is a high likelihood, if not an inference, of irreparable harm that will only get worse by the day absent the prayed for injunctive relief[] in cases like these.”
The court concluded that the decision whether to issue an injunction turned on the question of irreparable harm. The court stated that the record contained no factual evidence of irreparable harm, and the question was whether it was bound by Ninth Circuit precedent. It explained:
. . . I‘m going to think about that one for a few days, I think, because the record in front of me is not a record that shows factually any irreparable harm. There isn‘t a factual record showing that. The record is, in fact, to the
contrary, and so that‘s troubling to me. The record is also dated, and so there‘s this -- for example, this intervening event where there‘s employee support, albeit frightened and anonymous, for the union after withdrawal, and then subsequently there‘s the granting of the very -- well, to some degree, the raise that the union bargained for and didn‘t get. So one can imagine that might cause diminishment in support. Of course, my problem is one can only imagine it, because no one said
so on the record, and that‘s -- I just can‘t grant injunctions on attorney argument without a showing of any factual support for those arguments. So that‘s on the one hand. On the other hand, the Ninth Circuit has been pretty firm about this. And I need to just take another look at whether the Ninth Circuit has essentially said that if I find X, Y will follow; X being likelihood of success on a withdrawal of support case and Y being irreparable harm.
Therefore, the court took the issue under advisement.
A week later, on March 29, 2021, the district court entered its opinion and order. The opinion first stated that during the prior hearing, the court had ruled from the bench in favor of the Regional Director on “likelihood of success on the merits, balance of the equities, and public-interest factors,” but had taken “under advisement the issue of irreparable harm.” On that issue, the court stated:
I was concerned about Petitioner‘s showing of irreparable harm because the evidence submitted by Petitioner shows there was majority support for the union immediately following Respondent‘s withdrawal of recognition. But under Frankl v. HTH Corp., in
§ 8(a)(5) cases when there is a likelihood of success on the merits there is an inference of irreparable harm to union representation from the continuation of the unfair labor practice. 650 F.3d 1334, 1362-63 (2011). None of the evidence, including that in the supplemental record, shows what support for the union is like now after more time has passed since the withdrawal of recognition. In the absence of any contrary evidence, I apply the inference stated in Frankl—an inference
that grows in strength the longer the time gap between the withdrawal of recognition and the request for injunctive relief. Accordingly, I GRANT Petitioner‘s Petition for Preliminary Injunctive Relief.
In other words, the court ruled that despite the absence of any evidence in the record supporting the Regional Director‘s claim of irreparable harm, it would apply the inference derived from Frankl, and conclude there was irreparable harm.
Nexstar timely appealed, arguing that the district court had improperly interpreted Ninth Circuit precedent as requiring an automatic inference of a likelihood of irreparable harm whenever there was a likelihood of success on the merits in cases alleging the failure to bargain in good faith under
Before this Court could address Nexstar‘s appeal of the preliminary injunction, the Board issued its final decision in the underlying administrative proceeding on July 27, 2022, finding that Nexstar engaged in unfair labor practices and ordering it to cease and desist. Nexstar Broad., Inc. d/b/a Koin-TV & Nat‘l Ass‘n of Broad. Emps. & Technicians, the Broad. & Cable Television Workers Sector of the Commc‘ns Workers of Am., Loc. 51, AFL-CIO, 371 N.L.R.B. 118 (2022). The Regional Director then moved to dismiss the case as moot, on the ground that the district court‘s preliminary injunction expired by operation of law
upon the Board‘s final resolution of the administrative case. We ordered both parties to file supplemental briefing regarding mootness.
II
A
We first consider whether we have jurisdiction over this case. Because the Board has now resolved the merits of the unfair labor practice complaint, the appeal of the district court‘s grant of a preliminary injunction under
“inherently limited in duration such that it is likely always to become moot before federal court litigation is completed.” Ctr. for Biological Diversity v. Lohn, 511 F.3d 960, 965 (9th Cir. 2007). The exception “is concerned not with particular lawsuits, but with classes of cases that, absent an exception, would always evade judicial review.” Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 836 (9th Cir. 2014) (emphasis in original); see also 13C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3533.8 (3d ed. 2013) (listing cases involving prior restraints on free speech, government investigations, election disputes, labor-management disputes, and business regulation disputes, among others, as examples of “rough groupings” of the types of disputes that are covered by the exception). In such classes of cases, “orderly and effective judicial review would be precluded if we hewed strictly to the requirement that only a presently live controversy presents a justiciable question.” Alcoa, Inc. v. Bonneville Power Admin., 698 F.3d 774, 786 (9th Cir. 2012).
We have applied this exception to mootness in the context of
whether we had jurisdiction over a cross-appeal of the court‘s order. Applying the two-prong test, Miller concluded that “[t]here is no question that a
Miller also concluded that the second prong of the exception was met, because there was a reasonable expectation that the dispute would recur for both the employer and the Board. Id. at 454.7 We concluded that because the employer was a large employer that dealt with multiple unions, there was “a reasonable expectation that another labor dispute will arise and the Board may again seek
The same analysis applies here. For the first prong (evading review), we consider whether the action at issue is “inherently limited in duration,” Lohn, 511 F.3d at 965, because the exception was designed to address the type of situation that inherently evades judicial review, see Protectmarriage.com-Yes on 8, 752 F.3d at 836 (noting, by means of example, that “a woman can only obtain an abortion so long as she remains pregnant,” and that a court “can only invalidate a temporary injunction so long as that injunction remains in effect“).
We have already determined that a
The
In the NLRB‘s answering brief, the Regional Director argues that any new
Therefore, we conclude that the Board‘s issuance of its final order does not render this appeal moot. The dispute over standards is within the exception to the case-and-controversy requirement for actions that are capable of repetition, yet evading review.9
B
“We review the grant of an injunction pursuant to
“[T]he propriety of injunctive relief ... must be evaluated on a case-by-case basis in accord with traditional equitable principles and without the aid of presumptions or a ‘thumb on the scale’ in favor of issuing such relief.” Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 980–81 (9th Cir. 2011) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 157 (2010)). The Supreme Court has “consistently rejected invitations to replace traditional equitable considerations” with presumptions or categorical rules. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 392–93 (2006). In eBay,
We have previously acknowledged that the Supreme Court decisions (Winter, eBay, and Monsanto) rejecting presumptions abrogated our prior decisions that had adopted a presumption of irreparable harm. See Perfect 10, Inc., 653 F.3d at 980 (holding that our “longstanding rule that ‘[a] showing of a reasonable likelihood of success on the merits in a copyright infringement claim raises a presumption of irreparable harm” was effectively overruled because it was “clearly irreconcilable with the reasoning’ of the Court‘s decision in eBay“) (cleaned up). We reached the same conclusion in the
Following our rejection of a presumption of irreparable harm in the
Frankl then suggested conclusions that could logically be drawn from evidence of different types of unfair labor violations. For instance, Frankl stated that a violation of
Similarly, Frankl noted that a violation of
Frankl‘s distinction between an impermissible presumption of irreparable harm when the Regional Director is likely to succeed in showing a violation under
By contrast, “[a] permissible inference suggests to the [trier of fact] a possible conclusion to be drawn if [a party] proves predicate facts, but does not require the [trier of fact] to draw that conclusion.” Francis, 471 U.S. at 314. In other words, a permissible inference tells the trier of fact that evidence gives “rise to a permissible inference available only in certain circumstances,” which “could be ignored by the [trier of fact] even if there was no affirmative proof offered” in rebuttal. Ulster Cnty., 442 U.S. at 161. Such a permissible inference “does not relieve [a party] of its
Whether the presumptive-like device is described as a presumption or a permissible inference is not significant when it comes to assessing its effect, and hence its legal validity. See Black, 512 F.2d at 868 (analyzing a burden shifting statute as a presumption, because it “operates precisely like” a presumption, although not worded in presumptive language). Rather, courts take a functional approach and consider whether a presumption device has a “conclusive or persuasion-shifting effect.” Sandstrom v. Montana, 442 U.S. 510, 519 (1979) (discussing presumptions in jury instructions); see also Burdine, 450 U.S. at 254 & n.7 (noting that “[e]stablishment of the prima facie case” in a Title VII case creates a “legally mandatory, rebuttable presumption.“).
Because Frankl established permissible “inferences from the nature of the particular unfair labor practice at issue” which “remain available,” 650 F.3d at 1362, such permissible inferences are, by definition, neither mandatory nor binding on a court. Nor do they relieve the Regional Director of his burden of persuading the court that “the suggested conclusion should be inferred based on the predicate facts proved.” Francis, 471 U.S. at 314. A court making “permissible inferences” when a Regional Director attempts to demonstrate a likelihood of irreparable harm may rely on the same evidence the Regional Director used to demonstrate a likelihood of success on the merits because some evidence may have probative value for both inquiries. See Frankl, 650 F.3d at 1363 (explaining that in assessing the likelihood of irreparable harm, the district court may consider “[t]he same evidence and legal conclusions” that were relevant to likelihood of success on the merits, “along with permissible inferences“); see also Avanti Health, 661 F.3d at 1195 (same). But the inquiries into likelihood of success on the merits and likelihood of irreparable harm are distinct even if the same facts can be used to show both. Thus, a court is free to determine that the Regional Director is likely to succeed on the merits of an unfair labor practice claim, and at the same time is not entitled to preliminary injunctive relief because there is inadequate evidence that the union is likely to suffer irreparable harm. A permissible inference, as adopted in Frankl, does not change the Regional Director‘s burden of demonstrating likely irreparable harm, and the district court must make a finding of irreparable harm that is based on evidence in the record. The burden of proving the existence of “a present or impending deleterious effect of the likely unfair labor practice that would likely not be cured by later relief,” Frankl, 650 F.3d at 1362, remains with the Regional Director.
The dissent does not dispute this legal framework or our conclusion that Frankl does not impose a mandatory presumption of irreparable harm. Indeed, the dissent agrees that Frankl did not establish “that there is a required inference of irreparable harm based solely on the type of unfair labor practice at issue.” Dissent at 23. The dissent notes that such an “inference was ‘available,‘” id., but concedes that it is only permissive, such that “a court may draw an inference based on the nature of the unfair labor practice,” id. at 19–20 (emphasis added); see also id. at 20 (stating that “courts are permitted to draw an ‘inference’ that [irreparable] harm is present or impending.“) (emphasis added). And the
C
We now turn to the question whether the district court improperly determined that Frankl required it to presume irreparable harm based on its finding that the Regional Director had a likelihood of success on the merits on his claims of violations of
First, a walk through the record shows the district court inferred there was a likelihood of irreparable harm solely due to its finding of a likelihood of success on the merits. At the hearing in which the district court ruled from the bench, the district court found that there was a likelihood of success on the merits. It then considered the Regional Director‘s argument that support for the union was dwindling, which the court held was the sole colorable ground supporting the Regional Director‘s claim of irreparable harm.11 But the district court found there was no evidence in the record supporting this theory; it stated that “the record is, in fact, to the contrary,” and showed that support for the union was not dwindling. Given the lack of evidence supporting the Regional Director‘s theory of irreparable harm, the court concluded that it could not “grant injunctions on attorney argument without a showing of any factual support for those arguments.”
Instead of denying the motion for
The dissent argues that the district court merely applied a permissible inference, not a mandatory presumption. In the dissent‘s reading of the record, the district court elected to make the “available inference under Frankl,” after it “looked to see if there was evidence in the record to suggest that the inference should not be drawn.” Dissent at 23. The district court did not need to find any “independent factual support of likely irreparable harm,” the dissent claims, because it could rely on evidence of unfair labor practices. Id. at 24. We disagree with the dissent‘s reading of the record. The dissent overlooks the fact that the district court previously determined that the Regional Director‘s evidence of unfair labor practices was insufficient to show irreparable harm. Specifically, the court had ruled that there was no evidence in the record “that shows factually any irreparable harm,” and that “the record is, in fact, to the contrary.” Therefore, even though evidence of unfair labor practices may support a finding of irreparable harm in some cases, it did not do so in this case. Because the evidence of likely success on the merits did not show irreparable harm, we must conclude that the district court‘s ruling in favor of the Regional Director was based on the mistaken view that Frankl created a mandatory presumption.
Based on this record, we conclude that the district court improperly applied a presumption in making its irreparable harm
VACATED.13
Hooks v. Nexstar Broadcasting, Inc., No. 21-35252
W. FLETCHER, Circuit Judge, dissenting:
The
In this case, the Regional Director of the NLRB (“Regional Director“) petitioned the district court for a preliminary injunction under
Nexstar appealed the ALJ‘s decision to the Board. The Board affirmed the decision and ordered relief for the union. Nexstar Broadcast, Inc., 371 N.L.R.B. No. 118. The Board then moved in this court to dismiss as moot the appeal from the district court decision because the preliminary injunction had expired once the Board resolved the administrative appeal. See Johansen ex rel. NLRB v. Queen Mary Restaurant Corp., 522 F.2d 6, 7 (9th Cir. 1975) (per curiam). I agree with the Board that the appeal to us is now moot, and that we no longer have jurisdiction. My colleagues on this panel disagree. Invoking the “capable of repetition yet evading review” exception to mootness, they hold that the appeal is not moot.
If I were to reach the merits, I would affirm the district court. We held in Frankl that in deciding whether to grant preliminary injunctive relief under
Here, as in Frankl, the district court found the Regional Director had shown a “likelihood of success on the merits,” inter alia, based on evidence that Nexstar had violated
Reaching the merits, my colleagues hold that the district court misread Frankl. They write that the district court erroneously treated Frankl‘s recognition of an “available” inference of irreparable harm as a mandatory presumption in the context of a likely
I respectfully dissent.
I. Background
The majority provides an accurate but abbreviated recitation of the facts in the record. The following is a more detailed recitation.
A. Factual Background
This appeal arises in the context of a protracted labor dispute between Nexstar Broadcasting (“Nexstar“), and National Association of Broadcast Employees & Technicians, the Broadcasting and Cable Television Workers Sector of the Communications Workers of America, Local 51, AFL-CIO (“NABET Local 51” or “the union“). Nexstar is headquartered in Irving, Texas. It owns and operates nearly two hundred television stations across the country. Nexstar purchased KOIN-TV, a television station in Portland, Oregon, from LIN Television Corporation in January 2017 as part of a larger acquisition. NABET Local 51 represents two bargaining units of employees at KOIN-TV.
LIN Television and the union were parties to multiple collective-bargaining
In response to charges of unfair labor practices filed against Nexstar by the union, the Regional Director issued an administrative complaint on June 30, 2020, later amended on September 18, 2020. A five-day hearing was held before an ALJ in November 2020. The following narrative is largely based on evidence adduced at that hearing.
Nexstar and the union met for bargaining 42 times between June 2017 and December 2019. The union‘s lead negotiator was its president, Carrie Biggs-Adams. Nexstar‘s lead negotiator was its in-house attorney, Vice President of Labor and Employment Relations, Charles Pautsch. Material terms at issue included wages and overtime, vacation and holidays, and health benefits.
During the bargaining process, both parties filed charges of unfair labor practices with the NLRB. Many of the charges against Nextstar were meritorious. The Board found that Nexstar violated
At least one charge against the union was meritorious. An ALJ found that the union violated
Negotiations between Nexstar and the union became particularly contentious in 2019. The parties disagreed strongly about whether Nexstar should deduct from employees’ paychecks the union‘s initiation fee, which Nexstar contended was “exorbitant,” and about health insurance coverage and premiums. Beginning in September 2019, Nexstar began making unilateral changes to conditions of employment by assigning bargaining unit work to non-bargaining unit employees without notice to the union.
Nexstar provided evidence suggesting that near the end of 2019 KOIN-TV managers began to doubt that the union retained majority support. Many of the new employees who had been hired since the
On January 8, 2020, Nexstar notified NABET Local 51 in writing that it was withdrawing recognition of the union as the collective bargaining representative of the two bargaining units. In a letter to NABET Local 51 President Biggs-Adams, Nevin asserted that Nexstar had “good-faith reasonable doubt” that the union had majority support of employees in either of the bargaining units. Nevin wrote that Nexstar had “substantial objective evidence” of the union‘s loss of majority support. That same day, Nevin held several meetings with employees in both bargaining units. He informed them of the withdrawal of recognition and told them that they would soon be receiving a 1.5% wage increase, but that they would not receive it until after a 45-day waiting period. At these meetings, Nevin told employees that Nexstar had not conducted any formal polling to gauge union support. Instead, it based its withdrawal of recognition on “a few conversations with people.”
In response to Nexstar‘s withdrawal of recognition, the union circulated a petition in the two bargaining units in an attempt to show continuing support for the union. During the signature drive, several employees expressed fear of retaliation by Nexstar. To address the employees’ concerns and to protect their identities, the union brought in a neutral third-party to review the petition and certify the signatures. On February 18, 2020, a retired Catholic priest verified the signatures. Those signatures confirmed that the union retained majority support in both bargaining units. The priest hand-delivered the petition to Nevin.
Despite documentation of the union‘s support, Nexstar refused to meet with the union for bargaining. It removed the union‘s bulletin boards at the station. Nexstar also made unilateral changes to terms of employment, including altering the vacation-request system, providing employees with the promised 1.5% wage increase, and assigning bargaining unit work to non-unit employees.
Union representatives testified that after withdrawal of recognition, KOIN-TV management threatened bargaining unit employees who discussed union activities or conditions of employment with each other. Union steward Ellen Hansen testified that when she approached a fellow employee on a coffee break and asked about the union, KOIN-TV manager Rick Brown came up behind her and said: “I wouldn‘t talk about that if I were you.” On another occasion, Brown told Hansen that she was “not to be handing out bulletins” about contract negotiations because the union was no longer recognized. Brown also threatened an employee who asked about a raise in a performance review, stating that employees were not supposed to be talking about their wages with each other and that all raises could be revoked entirely. In February 2021, an employee requested the presence of a union steward at a disciplinary hearing. Nexstar denied the request, citing the company‘s lack of recognition of the union.
Members of the union leadership team testified that they experienced a decline in members’ engagement with the union after
B. National Labor Relations Board Proceedings
NABET Local 51 filed four unfair labor practice charges against Nexstar, alleging refusal to engage in good-faith bargaining, improper withdrawal of recognition, threats to employees, and unilateral changes to conditions of employment. The Regional Director conducted a field investigation and determined that there was reasonable cause to believe, as alleged in the charges, that Nexstar violated
The hearing before the ALJ took place over the course of five days between November 12–18, 2020. In June 2021, the ALJ found for the Regional Director. She found that Nexstar failed to bargain in good faith and instead engaged in “surface bargaining“; improperly withdrew recognition from the union; threatened employees engaging in union activities; and made unilateral changes to conditions of employment. Nexstar Broadcasting, Inc. D/B/A KOIN-TV, 2021 WL 2414030 (N.L.R.B. Div. of Judges June 11, 2021). The Board issued its final disposition in the administrative case on July 27, 2022. It found that the violations occurred and ordered relief for the union. Nexstar Broadcasting, Inc., 371 N.L.R.B. No. 118.
C. District Court Proceedings
On February 2, 2021, after the administrative hearing but prior to the issuance of the ALJ‘s decision, the Regional Director, Ronald K. Hooks, filed a petition in the district court for injunctive relief under
The petition alleged that the Regional Director‘s complaint had a substantial likelihood of success before the Board and that, at the conclusion of its proceedings, the Board would likely issue a cease-and-desist order against Nexstar. The petition stated that without preliminary injunctive relief requiring Nexstar to re-recognize the union and to resume bargaining in good faith and stop coercing employees from engaging in union activities, “employee support for the Union will be forever lost and Respondent will effectively accomplish its unlawful goal of permanently ridding its workplace of union supporters.” Contrary to the contention of my colleagues, Maj. Op. at 23, the Regional Director‘s concern about loss of union support was not the “sole basis” for the claim of irreparable harm. The Regional Director also contended that the Board‘s remedial authority “may be frustrated” without interim injunctive relief because “employees will permanently and irrevocably lose the benefit of the Board‘s processes and the exercise of statutory rights for the entire period required for Board adjudication”
“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter, 555 U.S. at 20. The district court initially ruled for the Regional Director on three of the four Winter requirements. It initially refrained from ruling on whether the union had shown a likelihood of irreparable harm in the absence of a preliminary injunction.
The district court expressed doubt about whether irreparable harm to the union was likely to occur if a preliminary injunction were not granted. The court focused its concern on one type of potential irreparable harm—whether the union would lose support from its employees following Nexstar‘s withdrawal of recognition if injunctive relief were not granted. The court expressed concern that the Regional Director had not submitted testimony of any employee stating that she no longer supported the union because recognition had been withdrawn and bargaining had ended. During a hearing, the court stated:
The whole question then turns into irreparable harm, and I‘m going to think about that one for a few days, I think, because the record in front of me is not a record that shows factually any irreparable harm. There isn‘t a factual record showing that. The record is, in fact, to the contrary, and so that‘s troubling to me.
...
On the other hand, the Ninth Circuit has been pretty firm about this. And I need to just take another look at whether the Ninth Circuit has essentially said that if I find X, Y will follow; X being likelihood of success on a withdrawal of support case and Y being irreparable harm.
After receiving supplemental briefing, the district court inferred a likelihood of irreparable harm based on Frankl ex rel. NLRB v. HTH Corp., 650 F.3d 1334 (9th Cir. 2011). The court issued a preliminary injunction on March 29, 2021.
Nexstar timely appealed and moved to stay the preliminary injunction pending appeal. A motions panel of our court denied the stay. After issuing its final decision affirming the decision of the ALJ, the Board moved in this court to dismiss as moot the appeal from the district court. It is uncontested that the preliminary injunction at issue in the appeal had no force or effect once the Board decided the administrative appeal. Nexstar opposed the Board‘s motion, arguing that the “capable of repetition yet evading review” exception saves the appeal from mootness.
II. Mootness
When the Board issues a final decision on the merits for an unfair labor practice complaint, a
The “capable of repetition” exception to mootness applies in only some
Although they misapply it, my colleagues do not contest that the rule established in Frankl governs this case. This appeal is in stark contrast to Miller, where the question was whether an established circuit rule should be changed. Unlike in Miller, the issue in this appeal is highly fact-intensive, and neither party has argued that Frankl should be altered or abandoned. Given the posture of this case and the fact-dependent application of the Frankl rule, the “capable of repetition” exception to mootness does not apply.
III. Merits
Given that my colleagues have reached the merits, I feel compelled to do so in order to register my strong disagreement with their holding.
A. Preliminary Injunctions Under Section 10(j)
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter, 555 U.S. at 24. Courts must evaluate petitions for both preliminary and permanent injunctive relief on “a case-by-case basis in accord with traditional equitable principles and without the aid of presumptions or a ‘thumb on the scale’ in favor of issuing such relief.” Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 980–81 (9th Cir. 2011) (quoting Monsanto, 561 U.S. at 157). In
In the context of the NLRA, “permitting an alleged unfair labor practice to reach fruition and thereby render[] meaningless the Board‘s remedial authority is irreparable harm.” Small ex rel. NLRB v. Avanti Health Health Systems, LLC (”Avanti Health“), 661 F.3d 1180, 1191 (9th Cir. 2011) (alterations in original omitted) (quoting Frankl, 650 F.3d at 1362). To obtain
In Miller, we had held in a
We have explained in our post-Winter cases that some unfair labor practices carry with them an inherent possibility of irreparable injury, particularly if the unfair practice is allowed to continue for a sustained period. We wrote in Frankl:
[W]hile a district court may not presume irreparable injury with regard to likely unfair labor practices generally, irreparable injury is established if a likely unfair labor practice is shown along with a present or impending deleterious effect of the likely unfair labor practice that would likely not be cured by later relief. In making the latter determination, inferences from the nature of the particular unfair labor practice at issue remain available.
650 F.3d at 1362 (emphasis added). That is, if there is a “present or impending deleterious effect of [a] likely unfair labor practice that would likely not be cured by later relief,” that effect, in addition to the likely unfair labor practice, constitutes a likelihood of irreparable harm. Id. In determining whether there is such an effect, a court may draw an inference based on the nature of the unfair labor practice. In other words, Frankl instructs that in certain cases petitioners are not required to provide independent factual support of “a present or impending deleterious” irreparable harm. For example, in
In Frankl, we gave as an example the unfair labor practice of failing to bargain in good faith. We wrote that such failure “has long been understood as likely causing an irreparable injury to union representation.” Id. We continued: “[E]ven if the Board subsequently orders a bargaining remedy, the union is likely weakened in the interim, and it will be difficult to recreate the original status quo with the same relative position of the bargaining parties. That difficulty will increase as time goes on.” Id. at 1363. Furthermore, because “the Board generally does not order retroactive relief, such as back pay or damages,” we explained that the failure to bargain in good faith may result in “loss of economic benefits” to employees that is unlikely to be fully remediated by an order by the Board. Id. We concluded:
Thus, a finding of likelihood of success as to a
§ 8(a)(5) bad-faith bargaining violation in particular, along with permissibleinferences regarding the likely effects of that violation, can demonstrate the likelihood of irreparable injury, absent some unusual circumstances indicating that union support is not being affected or that bargaining could resume without detriment as easily later as now.
In Avanti Health, we extended the reasoning in Frankl to situations where the employer failed to bargain at all. 661 F.3d at 1193. We stated, “Given the central importance of collective bargaining to the cause of industrial peace, when the Director establishes a likelihood of success on a failure to bargain in good faith claim, that failure to bargain will likely cause a myriad of irreparable harms.” Id. at 1191. We further described four different types of irreparable harm that were likely to follow an employer‘s refusal to recognize a union and to bargain in good faith: (1) loss of economic benefits during the period without a collective bargaining agreement; (2) loss of non-economic union benefits such as representation in grievance and arbitration procedures; (3) threats to industrial peace; and (4) weakened employee support for the union. Id. at 1191–92.
C. The District Court‘s Decision
In the case before us, the district court asked for supplemental briefing on the likelihood of irreparable harm. After receiving that briefing, the court inferred (to use the words of Frankl) that there was a “present or impending deleterious effect of the likely unfair labor practice that would likely not be cured by later relief.” 650 F.3d at 1362. The court wrote:
I was concerned about Petitioner‘s showing of irreparable harm because the evidence submitted by Petitioner shows there was majority support for the union immediately following Respondent‘s withdrawal of recognition. But under Frankl v. HTH Corp., in
§ 8(a)(5) cases when there is a likelihood of success on the merits there is an inference of irreparable harm to union representation from the continuation of the unfair labor practice. 650 F.3d 1334, 1362–63 ([9th Cir.] 2011). None of the evidence, including that in the supplemental record, shows what support for the union is like now after more time has passed since the withdrawal of recognition. In the absence of any contrary evidence, I apply the inference stated in Frankl—an inference that grows in strength the longer the time gap between the withdrawal of recognition and the request for injunctive relief.
Nexstar argues in its brief to us that the district court read Frankl to require an inference of irreparable harm as a “rigid categorical presumption.” Nexstar argues that the court misinterpreted Frankl “as creating a mandatory structural inference of irreparable harm based solely on the type of unfair labor practice alleged.” My colleagues adopt Nexstar‘s view, holding that the district court impermissibly “shifted the burden to Nexstar” of proving that employee support for the union remained at its pre-withdrawal-of-recognition levels. The district court did no such thing.
We wrote in Frankl that there are certain types of unfair labor practices that carry with them the likelihood of irreparable harm, particularly if a practice continues over a substantial period. Frankl, 650 F.3d at 1362–63; see also Avanti Health, 661 F.3d at 1193. But we did not write that there is a required inference of irreparable harm based solely on the type of unfair labor practice at issue. To use the word we used in Frankl, the inference is merely “available.” Frankl, 650 F.3d at 1362. It is not mandatory. Nexstar itself argued as much to the district court, stating that “the Ninth Circuit cases” do not create “some
The district court did not apply the inference as a “rigid categorical presumption.” Rather, as instructed by Frankl, it looked to see if there is evidence in the record to suggest that the inference should not be drawn. Given the court‘s undisputed finding that the Regional Director was likely to succeed on the merits, and “the absence of any contrary evidence” that irreparable harm would likely result, the court applied the available inference under Frankl. The district court‘s reference to the “absence of any contrary evidence” is critical, refuting Nexstar‘s argument that the court applied a rigid categorical assumption. The court indicated that if there had been contrary evidence it would have taken that evidence into account in determining whether to draw the inference.
My colleagues contend that they can discern that the court applied a rule of presumption rather than a permissive inference because the district court did not indicate what evidence it found persuasive, or how it inferred irreparable harm based on the plaintiff‘s predicate facts. But Frankl and Avanti Health both make clear that independent factual support of likely irreparable harm is not required when the court finds evidence of certain unfair labor practices, including failure to bargain in good faith. Frankl, 650 F.3d at 1363 (explaining that “[t]he same evidence and legal conclusions” used by the Director to establish a likelihood of success on the merits, “along with permissible inferences regarding the likely interim and long-term impact of the unfair labor practices” may establish a likelihood of irreparable harm (emphasis added)). The inference of likely irreparable harm is based instead on the nature of the underlying labor violation. Id. at 1362–63; Avanti Health, 661 F.3d at 1191–94.
Such inferences are permissible when the court considers the entire record and finds an absence of contrary evidence that would suggest an unusual circumstance is present. As we stated in Avanti Health: “In sum, a failure to bargain at all is likely to cause irreparable harm ‘absent some unusual circumstances indicating that union support is not being affected or that bargaining could resume without detriment as easily later as now.‘” 661 F.3d at 1194 (quoting Frankl, 650 F.3d at 1363). This language is almost exactly that used by the district court in its order granting injunctive relief in this case.
Conclusion
The district court carefully considered the record and correctly applied the available inference. It is apparent that my colleagues prefer that an inference of irreparable harm not be available in
I respectfully dissent.