Miller for and on Behalf of N.L.R.B. v. California Pacific Medical Center, s. 92-15721

• Decision Date: 21 March 1994
• Docket Number: Nos. 92-15721,92-15746,s. 92-15721
• Parties: 145 L.R.R.M. (BNA) 2769, 62 USLW 2591, 128 Lab.Cas. P 11,104 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/Cross-Appellee, v. CALIFORNIA PACIFIC MEDICAL CENTER, Respondent-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 449

19 F.3d 449

145 L.R.R.M. (BNA) 2769, 62 USLW 2591,

128 Lab.Cas. P 11,104

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/Cross-Appellee, v. CALIFORNIA PACIFIC MEDICAL CENTER,

Respondent-Appellee/Cross-Appellant.

Nos. 92-15721, 92-15746.

United States Court of Appeals, Ninth Circuit.

Argued Oct. 14, 1993.

Submission Deferred Oct. 14, 1993.

Submitted Oct. 28, 1993.

Decided March 21, 1994.

Appeal from the United States District Court for the Northern District of California, Barbara A. Caulfield, District Judge, Presiding.

Ellen A. Farrell, Assistant General Counsel, National Labor Relations Board, Washington, DC, for the petitioner-appellant/cross-appellee.

Jerome B. Falk, Jr., Howard, Rice, Nemerovski, Canady, Robertson & Falk, San Francisco, California, for the respondent-appellee/cross-appellant.

Before: WALLACE, Chief Judge, BROWNING, TANG, SCHROEDER, D.W. NELSON, HALL, WIGGINS, BRUNETTI, THOMPSON, TROTT, and RYMER, Circuit Judges.

RYMER, Circuit Judge:

To return nurses who worked at Children's Hospital of San Francisco to the collective bargaining status they had before Children's and Pacific Presbyterian Medical Center were merged into a single health care provider, California Pacific Medical Center (CPMC), the Regional Director of the National Labor Relations Board sought a preliminary injunction under Sec. 10(j) of the National Labor Relations Act, 29 U.S.C. Sec. 160(j), pending disposition of an unfair labor practice charge by the NLRB. Section 10(j) permits the Board to petition any United States district court for an appropriate restraining order and confers jurisdiction on the court to grant such temporary relief "as it deems just and proper."

Applying our circuit's two-part standard for Sec. 10(j) relief--determining first whether the factual allegations supporting the Board's petition are not insubstantial and frivolous, such that there is "reasonable cause" to believe the employer has violated the NLRA, and second, whether the requested relief is necessary to prevent a frustration of the remedial purposes of the Act and is thus "just and proper," Scott ex rel. NLRB v. El Farra Enters., Inc., 863 F.2d 670, 673-74 (9th Cir.1988); Aguayo ex rel. NLRB v. Tomco Carburetor Co., 853 F.2d 744, 747 (9th Cir.1988), the district court granted the Board's request for injunctive relief in a published opinion. Miller ex rel. NLRB v. California Pac. Medical Ctr., 788 F.Supp. 1112 (N.D.Cal.1992). The district court rejected, as incompatible with Ninth Circuit law, CPMC's argument that an injunction should issue only after a finding of irreparable harm and likely success on the merits. Id. at 1115 n. 1. On appeal, a panel of this court reversed, distinguishing El Farra and Tomco on their facts and holding that, whereas the "reasonable cause" prong goes to the maturity of the Board's proof and requires the district court to assess whether there has been a sufficient investigation into the circumstances requiring injunctive relief, the "just and proper" inquiry invokes traditional equitable criteria. Miller ex rel. NLRB v. California Pac. Medical Ctr., 991 F.2d 536 (9th Cir.1993).

We took this case en banc to clarify the standards to be applied in reviewing Sec. 10(j) petitions. We conclude that the "reasonable cause" inquiry has no place in Sec. 10(j) analysis, and that in deciding whether the Board's requested relief is "just and proper," district courts should consider traditional equitable principles, bearing in mind that the underlying purposes of Sec. 10(j) are to protect the integrity of the collective bargaining process and to preserve the NLRB's remedial power while the Board resolves an unfair labor practice charge.

I

For more than 45 years, California Nurses Association (CNA) has represented nurses at Children's. In July 1990, Children's and Pacific Presbyterian Medical Center (PPMC), a nearby hospital, decided to merge into a single health care provider, California Pacific Medical Center. The merger agreement provided that PPMC would be merged into Children's, that Children's would be the surviving corporation, that it would change its name to CPMC, and that CPMC would succeed to the rights and property (and assume the debts and liabilities) of PPMC. The merger was effective June 16, 1991.

CPMC advised six of the seven unions that had represented employees at Children's and PPMC that CPMC intended to recognize those unions' status as the collective representatives of covered employees and to honor its obligations under those contracts. The lone exception was CNA.

CNA had been the bargaining representative for the Children's nurses since 1947. At the time of the merger, it represented 568 registered nurses at Children's; PPMC's 802 registered nurses were not represented by any union.

On March 1, 1991, in accordance with the terms of the collective bargaining agreement, Children's notified CNA that it was terminating the agreement as of its expiration on June 1, 1991. On the date of the merger (June 16), CPMC notified CNA that it would no longer recognize the union as the bargaining agent for nurses of the new entity because CNA did not represent a majority of nurses at the combined facility. CPMC invited CNA to join in a request to the NLRB for a secret-ballot election of all registered staff nurses. CNA declined, and instead filed an unfair labor practice charge with the Board.

Since the merger, CPMC has centralized managerial and administrative functions. Labor relations and human relations are centralized under a single Vice President for Human Resources. Both campuses, as the former Children's facility (California Campus) and PPMC (Pacific Campus) are now called, use a common payroll system and follow identical job-posting procedures. For the most part, nurses on the two campuses are on the same wage scale, resulting in an increase in wages for the nurses at the California Campus.

Eight months after CNA filed the unfair labor practice charge, the Regional Director, acting at the Board's direction, petitioned the district court for a preliminary injunction under Sec. 10(j). The district court found that the Board had shown "reasonable cause" inasmuch as the Board's allegations that CPMC was little more than the "continuing existence" of Children's and therefore had an obligation to bargain in good faith with CNA were not insubstantial and frivolous. It also determined that restoration of the pre-merger status quo was necessary to prevent a frustration of the remedial purposes of the NLRA and therefore was "just and proper" given CPMC's unilateral withdrawal of CNA's recognition, the length of time the unfair labor charge would be pending, and the fact that if an injunction were not issued, CNA would cease to exist at the California Campus after 45 years of representing nurses at Children's. The district court accordingly directed CPMC to recognize CNA as the collective bargaining representative for nurses at the California Campus and to restore those nurses' terms and conditions of employment to their pre-merger status quo.

On April 15, 1992, the district court denied the Board's request to modify the preliminary injunction so as to make the restoration order contingent upon CNA's request. Both sides appealed.

On May 6, 1992, we granted CPMC's motion for a stay pending appeal insofar as the preliminary injunction required a rollback of the California Campus nurses' terms and conditions of employment to the pre-merger status quo. However, we left standing that part of the order requiring CPMC to recognize and bargain with CNA.

The appeals were briefed on an expedited schedule and the case was argued before the panel on August 19, 1992. The panel's opinion was filed on April 13, 1993. On August 27, 1993, the full court granted the Board's Petition for Rehearing En Banc and set argument for October 14. The Board issued its final decision on the merits of the underlying unfair labor practices charge on September 30, 1993.

In light of this development, we asked for supplemental briefing on the issue of mootness. Both sides complied, though they did not disagree at argument that the controversy was capable of repetition, yet evading review, and thus was not moot for purposes of jurisdiction. The court appreciates this extra assistance by counsel.

II

We have previously held that resolution of a Sec. 10(j) injunction proceeding is rendered moot by the NLRB's decision on the merits of an unfair labor practice complaint. Johansen ex rel. NLRB v. Queen Mary Restaurant Corp., 522 F.2d 6, 7 (9th Cir.1975) (per curiam). Just as both sides in Johansen agreed that the matter raised in that case was moot, both sides in this case agree that the issue raised in CPMC's appeal falls within the "capable of repetition, yet evading review" exception to the mootness doctrine. This appeal differs from Johansen in that it involves the propriety of the standard applied by district courts in Sec. 10(j) proceedings. Therefore, while a Sec. 10(j) injunction exists only so long as the charges are pending (and we therefore have no call to revisit Johansen on this account), we are presented with an important legal issue that we are persuaded will continue to come up, and escape review, unless we provide it in this case. ¹

For such circumstances the Supreme Court has recognized a "capable of repetition, yet evading review" exception to the mootness doctrine. In Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam), the Court summarized the doctrine and set forth two requirements:

[T]he "capable of repetition, yet evading review" doctrine [is] limited to the situation where two elements combine[ ]: (1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable...