Hooks ex rel. Nat'l Labor Relations Bd. v. Nexstar Broad., Inc.

• Decision Date: 05 December 2022
• Docket Number: 21-35252
• Citation: 54 F.4th 1101
• Parties: 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, Petitioner-Appellee, v. NEXSTAR BROADCASTING, INC., dba KOIN-TV, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

54 F.4th 1101

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, Petitioner-Appellee,

v.NEXSTAR BROADCASTING, INC., dba KOIN-TV, Respondent-Appellant.

No. 21-35252

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 6, 2021 Portland, Oregon

FILED DECEMBER 5, 2022

Charles P. Roberts III (argued), Constangy, Brooks, Smith & Prophete LLP, Winston-Salem, North Carolina; Steven B. Katz, Constangy, Brooks, Smith & Prophete LLP, Los Angeles, California; Robert A. Koch and Steven M. Wilker, Tonkon Torp LLP, Portland, Oregon; for Respondent-Appellant.

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.

Before: William A. Fletcher, Sandra S. Ikuta, and Daniel A. Bress, Circuit Judges.

Opinion by Judge Ikuta ;

Dissent by Judge W. Fletcher

OPINION

IKUTA, Circuit Judge:

In evaluating a petition for injunctive relief pursuant to § 10(j) of the National Labor Relations Act (the NLRA), 29 U.S.C. § 167(d), while a charge of unfair labor practices is pending, a district court must evaluate the propriety of such relief on a case-by-case basis under the traditional four-factor test, without applying any presumptions or categorical rules. See Small v. Operative Plasterers' & Cement Masons' Int'l Ass'n Loc. 200, AFL-CIO , 611 F.3d 483, 490 (9th Cir. 2010). "[W]hile a district court may not presume irreparable injury," it may, however, make permissible inferences based on evidence of violations of labor law. Frankl v. HTH Corp. , 650 F.3d 1334, 1362 (9th Cir. 2011). This case raises the question whether the district court here made a permissible inference, or relied on an improper presumption, in holding there was a likelihood of irreparable harm to union representation because of the continuation of an alleged unfair labor practice. We conclude that the district court mistakenly believed it was bound by a mandatory presumption to find a likelihood of irreparable harm, even though it had previously ruled that such a finding was unsupported by any evidence in the record. We therefore vacate the district court's order.

I

A

The NLRA makes it unlawful for an employer to engage in unfair labor practices, including the failure to bargain in good faith. 29 U.S.C. § 158. Among other violations, § 8(a)(1) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise" of the employees' right to concerted action, id. § 158(a)(1), and § 8(a)(5) makes it an unfair labor practice for an employer "to refuse to bargain collectively," id. § 158(a)(5).

Under 29 C.F.R. § 102.9, any person may file a charge with the Regional Director designated by the National Labor Relations Board (the Board) as the Board's agent for the relevant region, see id. § 102.1(b), (e), alleging that a person has engaged in an unfair labor practice under the NLRA. After receipt of the charge, the Regional Director may request that the complainant submit evidence in support of the charge. Id. § 101.4. If, after an investigation, a charge appears to have merit, the Regional Director may issue a complaint and notice of hearing before an Administrative Law Judge (ALJ). Id. §§ 101.8, 101.10(a).

At the administrative hearing, the parties may call and examine witnesses, introduce evidence, and submit briefs and proposed findings of fact and conclusions of law. Id. § 101.10(a). After the ALJ has ruled on the charge, the parties may file an "exception" (i.e. , an administrative challenge to the ALJ's decision), which causes the Board to review the case de novo. Id. §§ 101.11(b), 101.12(a). After the Board has issued its decision, any person aggrieved by the final order may petition for judicial review of the decision. Id. § 101.14.¹

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 § 10(j). 29 U.S.C. § 160(j).² In granting an injunction under § 10(j), "district courts should consider traditional equitable criteria." See Miller ex rel. NLRB v. Cal. Pac. Med. Ctr. , 19 F.3d 449, 459 (9th Cir. 1994) (en banc), abrogated on other grounds by Winter v. Nat. Res. Def. Council , 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). This consideration is viewed "through the prism of the underlying purpose of § 10(j), which is to protect the integrity of the collective bargaining process and to preserve the Board's remedial power while it processes the charge." Id. at 459–60. These traditional factors are: (1) the likelihood of the moving party's success on the merits; (2) the likelihood that the moving party will suffer irreparable injury if injunctive relief is not granted; (3) the extent to which the balance of equities favors the respective parties; and (4) that an injunction is in the public interest. See Winter , 555 U.S. at 20, 129 S.Ct. 365.

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 initiation fees on Local 51's behalf through deductions from employees' paychecks. In particular, Nexstar did not want to collect the initiation fee of three weeks of pay (an average amount of $3,000), because Nexstar deemed it to be too high 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.

Hansen testified that after Nexstar had withdrawn recognition of the union, fewer employees reached out to her in her capacity as a bargaining representative. The union's president, Carrie Biggs-Adams, likewise said she heard from only a few people in the bargaining unit after Nexstar withdrew its recognition of the union, but reiterated that employees "expressed repeatedly that people wanted to continue to have the union" and "didn't want the [u]nion to go away," even though they "were afraid of disciplinary or harassing actions that" Nexstar might take if they expressed such sentiments openly.

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 § 8(a)(1) ...