Hooks v. Nexstar Broad.
| Decision Date | 05 December 2022 |
| Docket Number | 21-35252 |
| 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 |
Argued and Submitted October 6, 2021 Portland, Oregon
Appeal from the United States District Court for the District of Oregon No. 3:21-cv-00177-MO Michael W. Mosman, District Judge, Presiding
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.
SUMMARY[*]
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 § 10(j) of the National Labor Relations Act ("NLRA") in the Board's action alleging that Nexstar Broadcasting, Inc. committed unfair labor practices in violation of the NLRA.
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 § 8(a)(1) and (5) of the NLRA. The Board affirmed the ALJ decision and ordered relief for the union.
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 § 10(j) is moot, unless an exception to mootness applies. One exception is where disputes are capable of repetition, yet evading review. This court has applied this exception in the context of § 10(j) injunction proceedings using a two-prong analysis. Under the first prong (evading review), the panel considered whether the action at issue was inherently limited in duration. The panel held that a § 10(j) injunction proceeding is the type of case that is inherently limited in duration because the controversy over the injunction exists only until the Board issues its final merits decision, which typically occurs before there is time for full judicial review of the request for an injunction. The panel concluded that the § 10(j) injunction met the first prong. The panel held that the § 10(j) injunction also met the exception's second prong, because there was a reasonable expectation that the complaining party, Nexstar, will be subject to a petition for a § 10(j) injunction in the future. The panel rejected the Regional Director's argument that any new §10(j) injunction would raise a different constellation of facts and legal proceedings, and therefore it was not reasonable to expect that the dispute over the specific legal issue in this appeal would recur. The panel concluded that the Board's issuance of its final order did not render this appeal moot.
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 § 10(j) context, and Frankl considered how irreparable harm could be established in the § 10(j) context. Frankl established permissible inferences from the nature of the particular unfair labor practice at issue, and such permissible inferences are neither mandatory nor binding on a court.
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 § 8(a)(1) of the NLRA. The record showed that the district court inferred there was a likelihood of success of irreparable harm solely due to its finding of a likelihood of success on the merits. The panel held that the district court misread Frankl as creating a mandatory presumption that required it to infer a presumed fact -irreparable harm-until contrary evidence was introduced. The panel further held that the evidence of likely success on the merits did not show irreparable harm. Based on the record, the panel concluded that the district court improperly applied a presumption in making its irreparable harm determination. Because the district court applied an erroneous legal standard, the district court abused its discretion in making its irreparable harm determination, and in granting the preliminary injunction.
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 § 8(a)(5) of the NLRA was likely to result in irreparable harm to the union if preliminary injunctive relief were not granted.
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.
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 (2008). This consideration is viewed "through the...
To continue reading
Request your trial