Miller for and on Behalf of N.L.R.B. v. California Pacific Medical Center

Decision Date13 April 1993
Docket Number92-15746,Nos. 92-15721,s. 92-15721
Parties143 L.R.R.M. (BNA) 2001, 61 USLW 2636, 125 Lab.Cas. P 10,677 Robert H. MILLER, Regional Director of region 20 of the National Labor Relations Board, FOR AND ON BEHALF OF the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant, v. CALIFORNIA PACIFIC MEDICAL CENTER, Respondent-Appellee. Robert H. MILLER, Regional Director of region 20 of the National Labor Relations Board, FOR AND ON BEHALF OF the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. CALIFORNIA PACIFIC MEDICAL CENTER, Respondent-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Jerry M. Hunter, General Counsel, Yvonne T. Dixon, Acting Deputy General Counsel, Robert E. Allen, Associate General Counsel, Ellen A. Farrell, Asst. General Counsel, Corinna L. Metcalf, Deputy Asst. General Counsel, Elinor L. Merberg, N.L.R.B., Washington, DC, for Robert H. Miller, petitioner-appellant-cross-appellee.

Jerome B. Falk, Jr., Steven L. Mayer, Pauline E. Calande, Howard, Rice, Nemerovski, Canady, Robertson & Falk, San Francisco, CA, Gerald R. Lucey, Joseph E. Wiley, Tracy Lessen Gersten, Corbett & Kane, Emeryville, CA, for respondent-appellee-cross-appellant California Pacific Medical Center.

Appeal from the United States District Court for the Northern District of California.

Before KOZINSKI and THOMPSON, Circuit Judges, and von der HEYDT, District Judge. *

KOZINSKI, Circuit Judge:

We decide when a preliminary injunction constitutes "just and proper" interim relief in an unfair labor practice case.

Background 1

Children's Hospital of San Francisco and Pacific Presbyterian Medical Center used to be independent hospitals in San Francisco. In July 1990 they decided to merge based on an estimate that integration of their facilities would save as much as $60 million over the first five years of operation by reducing duplication of services, equipment and staff. See CR 20 at 3-4. The Federal Trade Commission approved the merger, which became final on June 16, 1991. A new entity, California Pacific Medical Center, assumed operation of the facilities.

After the merger, CPMC contacted the six unions that had represented employees at either Children's or Presbyterian. CPMC advised those unions that had collective bargaining agreements, and that also represented a majority of the employees in the combined units, that "it is our intention to recognize your status as the collective representative of covered employees and to honor our obligation under that contract." E.g., CR 15 at 2. This turned out to include all unions that had represented employees either at Children's or Presbyterian, save one. See CR 20 at 1-2.

The exception was the California Nurses Association. Before the merger, the union represented the 568 registered nurses at Children's; the 802 registered nurses at Presbyterian, however, were not represented by CNA or any other union. The most recent collective bargaining agreement between the union and Children's ran from August 1, 1988, to May 31, 1991; no new agreement had been reached. In March 1991, Children's informed the union that it was terminating the collective bargaining agreement as of its expiration date of June 1, 1991, in accordance with the agreement's terms. After the merger, CPMC sent a letter notifying the union that it wouldn't recognize it as the bargaining agent for the nurses, because the union (with its membership of 568 nurses) no longer represented a majority of the approximately 1300 nurses at the combined facility. CPMC then petitioned the National Labor Relations Board for an election by the CPMC nurses of their bargaining representative, and invited the union to join with it in conducting the election. See NLRB Case # 20-CA-24067; CR 1 at 2; id. at exh. C; CR 15 at 6-7.

Instead, the union filed an unfair labor practice charge with the Board, thereby precluding the election. See CR 15 at 8-9. For several months, the Board dawdled. During that time, CPMC raised the wages of the nurses working at the former Children's hospital in order to bring them into line with the higher wages at Presbyterian, and made several other changes to the terms and conditions of their employment, some more favorable than under the expired collective bargaining agreement, some not.

Eight months after the filing of the unfair labor practice charge, the Board's Regional Director, Robert H. Miller, petitioned the district court for a preliminary injunction pursuant to section 10(j) of the National Labor Relations Act. Section 10(j) authorizes the Board to seek interim relief pending its resolution of unfair labor practice complaints; the district court has "jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper." 29 U.S.C. § 160(j). The court granted the injunction and required CPMC to recognize and bargain with the union. Moreover, the court ordered CPMC to restore all pre-merger terms and conditions of employment for the nurses who used to be represented by the union, pending the Board's resolution of the complaint. See 788 F.Supp. at 1117. CPMC appeals, arguing the district court applied the wrong standard in issuing the injunction. Dissatisfied with the scope of the injunction, the Board also appeals, arguing the court erred in not allowing the union to pick and choose which pre-merger contract terms it wished to retain. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).

Discussion
I

A. We apply a two-part test to determine whether section 10(j) injunctive relief is appropriate:

1. whether there is "reasonable cause" to believe that the unfair labor practices for which interim relief is sought have occurred[; and]

2. whether the relief sought is "just and proper" to preserve the Board's ability effectively to remedy the violations alleged.

Scott ex. rel. NLRB v. El Farra Enters., 863 F.2d 670, 673 (9th Cir.1988).

As to the first inquiry, the district court found reasonable cause to believe that an unfair labor practice had occurred. See 788 F.Supp. at 1115-16. CPMC doesn't challenge this finding. See CPMC's Opening Brief at 13 n. 10; CPMC's Reply Brief at 5. Rather, it challenges the standard the district court used in conducting the second inquiry, whether the requested relief was "just and proper." The district court rejected CPMC's argument that an injunction should issue only after a finding of irreparable harm and likely success on the merits, the traditional equitable bases for injunctive relief. See 788 F.Supp. at 1115 n. 1. Instead, it held that "the 'just and proper' element [of section 10(j) ] is met by a showing that the relief is necessary to prevent a frustration of the remedial purposes of the Act." Id. at 1116 (quotation marks and citation omitted).

Although district courts have wide discretion in issuing preliminary injunctions, "[w]here the district court is alleged to have relied on erroneous legal premises, review is plenary." America West Airlines v. National Mediation Bd., 969 F.2d 777, 783 (9th Cir.1992); see also Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1517 (9th Cir.1992) (preliminary injunction may be reversed if based on erroneous legal standard). Because this is precisely the scope of CPMC's challenge, we review de novo.

B. It's a "fundamental principle that an injunction is an equitable remedy that does not issue as of course." Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 1402, 94 L.Ed.2d 542 (1987). The standards we have adopted for the issuance of preliminary injunctions are rooted deeply in our legal tradition, and stem from the historical division of authority between courts of law and equity. See generally Dan B. Dobbs, Handbook on the Law of Remedies § 2.10 at 108-11 (1973); Charles Rembar, The Law of the Land 272-77, 303-05 (1980); see also Pomeroy's Equity Jurisprudence § 1337 (5th ed. (Symons) 1941) (tracing injunctions to the interdicts of Roman law).

In reviewing the grant of a preliminary injunction, we consider the following traditional equitable factors:

(1) the likelihood of plaintiff's success on the merits; (2) the possibility of plaintiff's suffering irreparable injury if relief is not granted; (3) the extent to which the balance of hardships favors the respective parties; and (4) in certain cases, whether the public interest will be advanced by the provision of preliminary relief.

United States v. Odessa Union Warehouse Co-Op, 833 F.2d 172, 174 (9th Cir.1987) (citations omitted). Stated another way, "the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips in its favor." United States v. Nutri-Cology, Inc., 982 F.2d 394, 397 (9th Cir.1992) (quotation marks and citations omitted). "These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Odessa Union Warehouse Co-Op, 833 F.2d at 174.

Nonetheless, the Board urges and the district court held, the standard for issuing preliminary injunctions under section 10(j) is different. Specifically, the Board maintains Scott ex rel. NLRB v. El Farra Enters., Inc., 863 F.2d 670 (9th Cir.1988), and Aguayo ex rel. NLRB v. Tomco Carburetor Co., 853 F.2d 744 (9th Cir.1988), hold that section 10(j) injunctions need only be consistent with the aims of the National Labor Relations Act to constitute "just and proper" relief within the meaning of the statute.

We did say in Tomco that "[a]lthough the district court has broad discretion in its determination of whether to grant 10(j) relief, its ruling is nonetheless subject to meaningful review to ensure consistency with the statutory purposes." 853 F.2d at 748 (emphasis added). 2 Moreover, we have long said that district courts should consider...

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