Small v. AVANTI HEALTH SYSTEMS, LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES F. SMALL, Regional Director 

of Region 21 of the National

Labor Relations Board for and on

behalf of the National Labor No. 11-55563

Relations Board, D.C. No.

Petitioner-Appellee,

 2:11-cv-01349-

v. ODW-FMO

AVANTI HEALTH SYSTEMS, LLC; OPINION

CHHP HOLDINGS II, LLC; CHHP

MANAGEMENT, LLC,

Respondents-Appellants.



Appeal from the United States District Court

for the Central District of California

Otis D. Wright, District Judge, Presiding

Argued and Submitted

August 4, 2011—Pasadena, California

Filed October 31, 2011

Before: Stephen Reinhardt, Kim McLane Wardlaw, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Reinhardt

19737

SMALL v. AVANTI HEALTH SYSTEMS 19741

COUNSEL

Richard W. Kopenhefer and Valerie E. Alter, Sheppard Mul-

lin Richter & Hampton LLP, Los Angeles, California, for the

respondents-appellants.

Lafe E. Solomon, Acting General Counsel, Judith I. Katz,

Assistant General Counsel, Celeste J. Mattina, Acting Deputy

General Counsel, Steven L. Sokolow, Deputy Assistant Gen-

eral Counsel, Barry J. Kearney, Associate General Counsel,

and Richard J. Lussier, Senior Attorney, National Labor Rela-

tions Board, Washington, D.C., for the petitioner-appellee.

OPINION

REINHARDT, Circuit Judge:

I.

In March 2010, Karykeion Inc. sold Community Hospital

to CHHP.1 Three days after the sale became final, CHHP took

over ownership of Community. CHHP refused, however, to

recognize or bargain with the California Nurses Association,

the union that had represented the registered nurses at Com-

munity under Karykeion’s ownership. James Small, Regional

Director of Region 21 of the National Labor Relations Board

(the “Director”), sought preliminary injunctive relief in the

district court pursuant to § 10(j) of the National Labor Rela-

tions Act (NLRA). The Director alleged that CHHP was a

successor employer to Karykeion and that a majority of

CHHP’s registered nurses had been members of the California

Nurses Association under Karykeion. The Director therefore

alleged that CHHP’s continuing failure to bargain in good

1

We refer to the defendants, Avanti Health Systems, LLC, CHHP Hold-

ings II, LLC, and CHHP Management, LLC, collectively as CHHP.

19742 SMALL v. AVANTI HEALTH SYSTEMS

faith with the chosen representative of its employees violated

§§ 8 (a)(1) & 8 (a)(5) of the NLRA.

The district court granted the Director’s § 10(j) petition and

issued a preliminary injunction. It applied the test established

by the Supreme Court in Winter v. Natural Resources Defense

Council, 555 U.S. 7 (2008), and held that the Director had

established a likelihood of success on the merits and a likeli-

hood of irreparable harm, that the balance of equities tipped

in the Director’s favor, and that the public interest favored the

issuance of the injunction. See id. at 20. We conclude that the

district court did not abuse its discretion in issuing the prelim-

inary injunction and therefore affirm its order.

II.

A.

Community Hospital of Huntington Park (“Community”) is

an acute-care hospital located in Huntington Park, California.

Until March 2010, Community was owned by Karykeion, Inc.

From 2004 to the end of Karykeion’s ownership, registered

nurses (“RNs”) at Community were represented by the Cali-

fornia Nurses Association (“CNA” or “union”). The most

recent collective bargaining agreement (“CBA”) between

Karykeion and the CNA was to be effective from January 1,

2007 to June 30, 2010. In September 2008, Karykeion filed

for bankruptcy protection, and attempted to sell Community.

CHHP2 sought to buy Community from Karykeion, but

required Karykeion to reject the CBA with the CNA before

any sale was completed. CHHP also required Karykeion to

reject its CBA with the Service Employees International

Union (“SEIU”), which represented janitorial employees at

Community.

2

Avanti Health Systems, LLC formed CHHP Holdings II, LLC to pur-

chase Community Hospital and CHHP Management to manage the hospi-

tal.

SMALL v. AVANTI HEALTH SYSTEMS 19743

On March 6, 2010, while CHHP was negotiating with

Karykeion over the sale of Community, Dinorah Williams, a

labor representative from the CNA, sent a letter to CHHP.

The letter asserted that CHHP would be a successor employer

to Karykeion and would thus be required to recognize and

bargain with the CNA. Williams later declared that the union

had been told by Daniel Ansel, Karykeion’s CFO and Chief

Restructuring Officer, that “Avanti didn’t want the Union no

matter what” and that “Avanti would do whatever was neces-

sary to make[ ] sure they didn’t have the Union.” Ansel told

Williams that CHHP “would only agree to buy the hospital if

there wasn’t a union.”

On March 15, 2010, the bankruptcy court granted Karyk-

eion’s motion to reject the CBA between Karykeion and the

CNA. The hospital’s assets were put up for sale at a public

auction and CHHP purchased Community on March 23rd.

CHHP was not required to assume the CBA. On March 26th,

CHHP officially took control of Community. Araceli Loner-

gan, Community’s CEO, declared that “[t]he new staff . . .

began working effective Friday, March 26, 2010, three days

after the sale was finalized.” Steven Lopez, Avanti’s CFO

agreed, and averred that he believed that Community was

“fully staffed” on that date.3 Although CHHP did reduce

Community’s staffing levels, Lopez declared that CHHP

“didn’t make any major operational changes” when it took

over Community, and Community continued “to provide the

same health care services.”

On March 26th, Lopez met with Richard Kopenhefer,

CHHP’s labor counsel, and together they undertook efforts to

determine whether CHHP was a successor employer to

Karykeion and thus obligated to bargain with the CNA. They

concluded that the CNA did not represent a majority of its

RNs and refused to recognize the CNA or to bargain with it.

3

Lopez also declared, however, that he believed that CHHP’s workforce

was not “stabilized” until mid-May, 2010.

19744 SMALL v. AVANTI HEALTH SYSTEMS

The Director disputes CHHP’s calculations. On Karyk-

eion’s March 25th “Employee Register,” every RN is marked

with a “union code designation,” indicating membership in

the CNA. The Director compared this Employee Register to

CHHP’s payroll for the period from March 26th to April 4th,

which shows that CHHP employed a total of 47 RNs. After

comparing Karykeion’s Register to CHHP’s payroll, the

Director identified 30 CHHP RNs who were part of the CNA

bargaining unit at Karykeion. The Director thus calculated the

union incumbency rate as 63.8% (30/47).

B.

On December 1, 2010, the CNA filed a charge with the

National Labor Relations Board (the “Board” or the “NLRB”)

against CHHP alleging violations of §§ 8(a)(1), (3) and (5) of

the NLRA. 29 U.S.C. § 158(a)(1), (3) and (5). On December

27, the Acting General Counsel of the NLRB filed a com-

plaint against CHHP alleging violations of §§ 8(a)(1) and (5)

of the NLRA. Section 8(a)(1) makes it unlawful for an

employer “to interfere with, restrain, or coerce employees in

the exercise of the rights [to join labor unions and bargain col-

lectively].” Scott ex rel. NLRB v. Stephen Dunn & Assocs.,

241 F.3d 652, 662 (9th Cir. 2001) (quoting 29 U.S.C.

§ 158(a)(1) (brackets in original)), abrogated on other

grounds as recognized by McDermott v. Ampersand Pub.,

LLC, 593 F.3d 950, 957 (9th Cir. 2010). Section 8(a)(5)

makes it unlawful for an employer “to refuse to bargain col-

lectively with the representatives of his employees.” 29

U.S.C. § 158(a).

On February 14, 2011, the Director, on behalf of the

NLRB, petitioned the district court for a preliminary injunc-

tion against CHHP pursuant to § 10(j).4 The Director alleged

4

Section 10(j) of the NLRA provides that “[t]he Board shall have

power, upon issuance of a complaint . . . charging that any person has

engaged in or is engaging in an unfair labor practice, to petition any

SMALL v. AVANTI HEALTH SYSTEMS 19745

in his petition that CHHP had violated and was continuing to

violate §§ 8(a)(1) and (5) of the NLRA by refusing to recog-

nize and bargain with the CNA despite CHHP’s status as a

successor employer to Karykeion. On March 28, 2011, the

district court applied the preliminary injunction standard set

forth in Winter v. Natural Resources Defense Council, 555

U.S. 7 (2008), and determined that an injunction was war-

ranted. The district court ordered CHHP to cease and desist

from “[f]ailing and refusing to recognize and bargain collec-

tively and in good faith with the California Nurses Associa-

tion . . . as the exclusive bargaining representative” of

CHHP’s RNs. The district court also ordered CHHP to affir-

matively recognize and bargain in good faith with the CNA

and “if an understanding is reached, embody that understand-

ing in a signed agreement.”

CHHP timely appealed the district court’s order. CHHP

also moved for an emergency stay pending appeal, but a

motions panel of our court denied the stay. 9th Cir. Dkt. 9, 16.

On June 14, 2011, an NRLB Administrative Law Judge

(“ALJ”) issued a decision based on four days of hearings held

in mid-March. 9th Cir. Dkt. 35 (hereinafter “ALJ Decision”)

at 1-2.5 Like the district court, the ALJ concluded that on

March 26, 2010, Community employed 47 RNs. Id. at 5-6. Of

these 47 RNs, the ALJ found that 30 were in the CNA bar-

gaining unit at Karykeion, and thus that a majority of RNs in

the unit were union incumbents. Therefore, the ALJ deter-

mined that CHHP was obligated to recognize the CNA and

United States district court, within any district wherein the unfair labor

practice in question is alleged to have occurred . . . for appropriate tempo-

rary relief or restraining order. Upon the filing of any such petition the

court . . . shall have jurisdiction to grant to the Board such temporary relief

or restraining order as it deems just and proper.” 29 U.S.C. § 160(j).

5

This decision is found in the 28(j) letter filed by the Director on July

15, 2011. 9th Cir. Dkt. 35.

19746 SMALL v. AVANTI HEALTH SYSTEMS

bargain with it in good faith. Id. at 5, 10. The ALJ ordered

nearly identical relief to that ordered by the district court.6

The ALJ’s decision is not part of the record below because

it was issued after the district court’s opinion; however, we

may take judicial notice of it pursuant to Federal Rule of Evi-

dence 201. See Overstreet v. United Bhd. of Carpenters and

Joiners of Am., Local Union No. 1506, 409 F.3d 1199, 1204

(9th Cir. 2005). We do so here. CHHP does not argue that we

should not. Although it is beyond dispute that the ALJ’s rul-

ing does not “foreordain[ ] the Board’s decision,” id. at n.12,

three other circuits have looked to ALJ decisions in reviewing

the grant or denial of § 10(j) petitions. In Bloedorn v. Fran-

cisco Foods, Inc., 276 F.3d 270, 288 (7th Cir. 2001), the Sev-

enth Circuit relied on an ALJ opinion when reviewing a

district court’s refusal to grant a § 10(j) injunction, even

though the ALJ decision was not issued until two months after

the district court’s order. It did so because:

[a]ssessing the Director’s likelihood of success calls

for a predictive judgment about what the Board is

likely to do with the case. The ALJ is the Board’s

first-level decisionmaker. Having presided over the

merits hearing, the ALJ’s factual and legal determi-

nations supply a useful benchmark against which the

Director’s prospects of success may be weighed.

Id.7

We find the Seventh Circuit’s rationale compelling, but in

this case, we need not decide how much weight to give to the

ALJ’s decision. As discussed below, the Director has demon-

6

CHHP filed exceptions to the ALJ’s decision.

7

The First and Second Circuits have also looked to ALJ’s decisions,

even though they were issued after the district court’s decision. Rivera-

Vega v. ConAgra, Inc., 70 F.3d 153, 157 n.7, 161 (1st Cir. 1995); Seeler

v. Trading Port, Inc., 517 F.2d 33, 37 n.7 (2d Cir. 1975).

SMALL v. AVANTI HEALTH SYSTEMS 19747

strated a likelihood of success even in the absence of the

ALJ’s determination. Therefore, we need not rely on the

ALJ’s decision, although we note that if we did rely on it, the

ALJ’s ruling would provide additional support for our deci-

sion.

III.

We review the grant of an injunction pursuant to § 10(j) of

the NLRA for an abuse of discretion. See Small ex rel. NLRB

v. Operative Plasterers’ & Cement Masons’ Int’l Assoc., 611

F.3d 483, 489 (9th Cir. 2010). “The district court abuses its

discretion if it relies on a clearly erroneous finding of fact or

an erroneous legal standard.” Id. We review de novo whether

the district court applied the correct legal standards. Id.

IV.

[1] Section 10(j) authorizes the district court to grant “such

temporary relief or restraining order as it deems just and prop-

er.” 29 U.S.C. § 160(j). In conducting that determination,

“district courts consider the traditional equitable criteria used

in deciding whether to grant a preliminary injunction.”

McDermott, 593 F.3d at 957. While employing the traditional

equitable criteria, district courts must “keep[ ] in mind that the

underlying purpose of § 10(j) is ‘to protect the integrity of the

collective bargaining process and to preserve the [NLRB’s]

remedial power while it processes the charge.’ ” Id. (quoting

Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449, 459-60 (9th Cir.

1994) (en banc)).

The test for a preliminary injunction, laid out by the

Supreme Court in Winter, is as follows:

A plaintiff seeking a preliminary injunction must

establish [1] that he is likely to succeed on the mer-

its, [2] that he is likely to suffer irreparable harm in

the absence of preliminary relief, [3] that the balance

19748 SMALL v. AVANTI HEALTH SYSTEMS

of equities tips in his favor, and [4] that an injunction

is in the public interest.

555 U.S. at 20.

Winter overturned this court’s precedents that allowed dis-

trict courts to grant injunctions when a plaintiff demonstrated

a strong likelihood of prevailing on the merits, but only a pos-

sibility of irreparable harm. Id. at 22 (holding that “the Ninth

Circuit’s ‘possibility’ standard is too lenient”). However,

Winter did not change the requisite showing for any individ-

ual factor other than irreparable harm. See Frankl v. HTH

Corp., No. 10-15984, ___ F.3d ___, 2011 WL 3250637, at

*15 (9th Cir. July 13, 2011); Alliance for the Wild Rockies v.

Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011).

A. Likelihood of Success on the Merits

[2] We recently reaffirmed that “the regional director in a

§ 10(j) proceeding ‘can make a threshold showing of likeli-

hood of success by producing some evidence to support the

unfair labor practice charge, together with an arguable legal

theory.’ ” Frankl, 2011 WL 3250637, at *16 (quoting Miller,

19 F.3d at 460).

Moreover, when the Director seeks and receives approval

from the NLRB before filing a § 10(j) petition, the Director

is owed special deference because “likelihood of success is a

function of the probability that the Board will issue an order

determining that the unfair labor practices alleged by the

Regional Director occurred.” Frankl, 2011 WL 3250637, at

*16. That the NLRB “itself decid[ed] to file a Section 10(j)

petition might signal its future decision on the merits, assum-

ing the facts alleged in the petition withstand examination at

trial.” McDermott, 594 F.3d at 964. The NLRB files for

§ 10(j) injunctions relatively rarely.8

8

See Memorandum from Lafe E. Solomon, Acting Director General

Counsel, NLRB, to All Employees at 2, 8 (Jan. 10, 2011), available at

SMALL v. AVANTI HEALTH SYSTEMS 19749

[3] To evaluate the Director’s likelihood of success, we

apply the standard set forth by the Supreme Court in Fall

River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27

(1987). In that case, the Court held that a successor employer

has an obligation to bargain with a union if “the new

employer is in fact a successor of the old employer and the

majority of its employees were employed by its predecessor.”

Id. at 43. The parties agree that CHHP is a successor

employer of Karykeion because of the “substantial continu-

ity” in the operations of Community under both employers.

See id. at 43. Therefore, here, the Director’s likelihood of suc-

cess turns on whether a majority of the RNs at CHHP were

in the RN bargaining unit at Karykeion.

To determine whether union incumbents comprised a

majority of CHHP’s RNs, we must decide (1) on what day

CHHP employed a “substantial and representative” comple-

ment of the employees in the relevant bargaining unit, and (2)

whether, on that date, a majority of CHHP’s RNs were former

members of Karykeion’s CNA bargaining unit. Especially in

light of the deference due to the Director, the district court did

not clearly err in determining that the Director was likely to

succeed on the merits because CHHP employed a substantial

and representative complement of RNs on March 26th and a

majority of CHHP’s RNs on that date were union incumbents.

1.

[4] As discussed above, in evaluating likelihood of success

on the merits, we must first determine the date on which

CHHP employed a “substantial and representative comple-

http://mynlrb.nlrb.gov/link/document.aspx/09031d4580434379 (noting 23

filings in 2009). From 1996 to 2009, the number of § 10(j) petitions filed

ranged from a low of 10 in 2004 to a high of 45 in 2000. Catherine L. Fisk

& Deborah C. Malamud, The NLRB in Administrative Exile: Problems

with its Structure and Function and Suggestions for Reform, 58 Duke L.J.

2013, 2030 tbl. 1 (2009).

19750 SMALL v. AVANTI HEALTH SYSTEMS

ment” of RNs. In determining when a “substantial and repre-

sentative complement” of employees has been hired, primary

considerations are “ ‘whether the job classifications desig-

nated for the operation were filled or substantially filled and

whether the operation was in normal or substantially normal

production.’ ” Fall River, 482 U.S. at 48 (quoting Premium

Foods, Inc. v. NLRB, 709 F.2d 623, 628 (9th Cir. 1983)). Also

pertinent are “ ‘the size of the complement on that date and

the time expected to elapse before a substantially larger com-

plement would be at work . . . as well as the relative certainty

of the employer’s expected expansion.’ ” Id. (quoting Pre-

mium Foods, 709 F.2d at 628).

In Fall River, the Court concluded that the successor

employer had hired a substantial and representative comple-

ment of employees when it “ ‘had hired employees in virtu-

ally all job classifications, had hired at least fifty percent of

those it would ultimately employ in the majority of those clas-

sifications, and employed a majority of the employees it

would eventually employ when it reached full complement.’ ”

Fall River, 482 U.S. at 52 (quoting N.L.R.B. v. Fall River

Dyeing & Finishing Corp., 775 F.2d 425, 431-32 (1st Cir.

1985)).9 Moreover, the employer had begun normal opera-

tions, and even though it intended to expand from one shift of

workers to two shifts, “that expansion was contingent

expressly upon the growth of the business.” Id.

[5] Here, the district court concluded that on March 26,

2010, CHHP employed a substantial and representative com-

plement of RNs. The ALJ also found that CHHP employed a

substantial and representative complement of RNs on that

9

Here, as discussed above, the CNA bargaining unit is only RNs. In Fall

River, all production and maintenance employees were in the bargaining

unit. See Fall River, 482 U.S. at 33. The parties do not discuss employ-

ment levels in any of the other job classifications at Community, but the

hospital did open for normal or substantially normal operations on March

26th. In any event, in reviewing a § 10(j) injunction, the proper focus of

our review is the bargaining unit at issue.

SMALL v. AVANTI HEALTH SYSTEMS 19751

date. ALJ Decision at 10. We agree. On that date, the RN

positions were substantially filled because CHHP employed a

majority of the RNs it eventually planned to employ, the oper-

ation was in “normal or substantially normal production” and

there was no “relative certainty” that the employer would hire

a substantially larger complement of employees.

According to CHHP’s own payroll records, between March

26th and April 4th it employed 47 RNs. Lopez, the CFO of

Community, declared in both an NLRB affidavit and a sworn

declaration that CHHP’s employees “began working effective

Friday, March 26, 2010,” and he believed “as of March 26th

that Community Hospital was fully staffed.”10

[6] CHHP asserts, however, that its workforce was not sta-

bilized until mid-May because some of its RNs failed to show

up for work on the first day or resigned soon after. The fact

that some RNs did not show up for work during the first week

of CHHP’s ownership does not mean that CHHP had not yet

hired a substantial and representative complement of RNs. At

most, it means that CHHP planned to hire the 62 RNs to

whom it had made offers.11 But, 47 RNs worked during the

10

CHHP alleges that it “defies rationality” to believe that it could staff

Community with 47 RNs in part because state law dictates how many RNs

it is required to hire. Of course CHHP does not dispute the accuracy of its

own payroll records, so it is clear that CHHP did staff Community with

only 47 RNs during the first pay period. Although CHHP was required to

maintain a certain nurse-to-patient ratio, this does not mean that CHHP

was required to employ more than 47 registered nurses. See Cal. Code

Regs. tit. 22 § 70217 (2008). The legal ratio depends on the number of

patients as well as the number of “licensed nurses,” which includes not

only registered nurses, but also licensed vocational nurses and licensed

psychiatric technicians. Id. CHHP does not explicitly assert that 47 RNs

would fall below the legal limit for RNs at Community. There is no dis-

pute that CHHP opened the hospital with only 47 RNs on March 26th, and

we cannot presume that CHHP was operating illegally when it did so.

11

CHHP initially asserted that this list contained 65 RNs; however, the

March 26th list of offers and acceptances contains the names of only 62

RNs. CHHP does not deny that it made offers to only 62 RNs.

19752 SMALL v. AVANTI HEALTH SYSTEMS

first pay period, and 47 is 76% of 62. Fall River held that a

majority of employees constitutes a substantial and represen-

tative complement, as long as the operation was running sub-

stantially normally, which was the case here. CHHP does not

argue that it planned to dramatically expand beyond 62 RNs;

in fact, it argues that it had “finished hiring” on May 16th,

when it employed only 61 RNs.12 CHHP appears to ask us to

adopt the “full complement” test, which would calculate

union incumbency only once the successor employer had

hired all of the employees eventually to be employed. The

Supreme Court, however, explicitly rejected this test in Fall

River. 482 U.S. at 50 (“[P]etitioner’s ‘full complement’ pro-

posal must fail.”). Therefore, the proper date for determining

union incumbency is not May 16th, when CHHP was done

hiring, but rather March 26th, when it had hired a majority of

RNs. Accordingly, the district court did not clearly err in

determining that CHHP employed a “substantial and repre-

sentative complement” of the relevant bargaining unit on

March 26, 2010.

2.

[7] Having determined that March 26, 2010 was the cor-

rect date for the employee count, the next question is whether

union incumbents comprised a majority of the bargaining

unit. The district court and the ALJ both agreed with the

Director that there were 47 RNs in the bargaining unit on that

date. CHHP does not provide any compelling evidence to the

contrary, and therefore we defer to the Director’s calculations.

[8] In coming to its conclusion, the district court and the

Director relied on CHHP’s Community payroll from March

26th to April 4th. This payroll, Community’s first after it

12

In its opening brief, CHHP argued that it employed 68 RNs in mid-

May, but in counting 68, CHHP included four nursing supervisors, an “RN

Case Manager,” a “Manager ICU/UMS,” and a “Peds/Surgery Manager.”

CHHP does not deny that inclusion of these employees was erroneous.

SMALL v. AVANTI HEALTH SYSTEMS 19753

commenced operations under CHHP ownership, lists 47

employees with the title “registered nurse.” The district court

did not err in relying on that payroll. CHHP argues that we

should instead count 62 members of the bargaining unit

because CHHP had made offers and received acceptances

from 62 RNs. But, some of the employees who received

offers never reported to work, and others did not commence

working until subsequent pay periods.13 Moreover, CHHP’s

argument that it employed 62 RNs on March 26th directly

contradicts its assertion that it had not employed a “substan-

tial and representative complement” of RNs until mid-May (at

which time it employed 61 RNs).

The purpose of the “substantial and representative comple-

ment” rule is to protect the interests of employees. See Fall

River, 482 U.S. at 48 (noting that the rule balances the interest

in maximizing employee participation against the interest in

allowing employees to be represented as quickly as possible).

Only those employees who actually worked for CHHP should

be counted; otherwise, employers would have an incentive to

inflate the number of employees in the bargaining unit

through sham offers and acceptances. Any system for count-

ing employees will have line-drawing problems, but it is clear

that the Director has some evidence to support his contention

as well as an arguable legal theory. “A conflict in the evi-

dence does not preclude the Regional Director from making

the requisite showing for a section 10(j) injunction.” Dunn,

241 F.3d at 662. It was not clear error for the district court to

use 47 as a base number for its count.

13

Ten of the 18 RNs that CHHP had offered jobs to as of March 26 but

who did not appear for work during the first pay period do appear on sub-

sequent payroll records. Eight RNs, however, apparently never showed up

for work. Even if we counted the ten RNs who later worked for Commu-

nity, incumbents would comprise 58% (33/57) of the bargaining unit.

19754 SMALL v. AVANTI HEALTH SYSTEMS

3.

[9] After determining that the bargaining unit contained 47

RNs, we must determine whether the Director presented some

evidence that at least 24 of the 47 RNs were previously in the

bargaining unit under Karykeion’s ownership; if so, CHHP

was required to recognize and bargain with the CNA. Fall

River, 482 U.S. at 47 (“If, at this particular moment, a major-

ity of the successor’s employees had been employed by its

predecessor, then the successor has an obligation to bargain

with the union that represented these employees.”). We con-

clude that the Director has presented far more than some evi-

dence that 30 of the 47 RNs employed by CHHP on March

26th were Karykeion bargaining unit incumbents.

The Director identified 30 incumbents in the bargaining

unit by comparing CHHP’s list of RNs to the RNs who were

designated as CNA members on Karykeion’s March 25th

“Employee Register.” Karykeion’s Chief Nursing Officer

confirmed that those RNs were part of the CNA bargaining

unit at Community.

[10] Therefore, the district court did not clearly err in find-

ing that union incumbents comprised a majority of the bar-

gaining unit.14 All the Director needs to do is present some

evidence and an arguable legal theory: he has far surpassed

that low threshold here.15 Accordingly, the district court did

14

We note that although CHHP did not mark incumbents on the March

26th payroll, it did mark incumbents on the March 26th offers and accep-

tance list and the May 16th payroll. Even by CHHP’s count, 28 members

of the 47-member bargaining unit, a majority, were union incumbents.

15

CHHP also asserts that if it were permitted to submit the evidence

presented to the ALJ, it “could prove definitively that the Union did not

represent a majority of incumbent nurses.” However, the ALJ ruled

against CHHP and came to the same numerical conclusions as the Director

and the district court. ALJ Decision at 11.

SMALL v. AVANTI HEALTH SYSTEMS 19755

not abuse its discretion in concluding that the Director was

likely to succeed on the merits.16

B. Likelihood of Irreparable Harm

1.

[11] After Winter, a district court cannot grant an injunc-

tion unless the Director has shown that irreparable harm is

“likely”; the “possibility” of harm is insufficient to meet the

Director’s burden. 555 U.S. at 22. Of course, while “likely”

is a higher threshold than “possible,” the Director need not

prove that irreparable harm is certain or even nearly certain.

Moreover, as we recently reaffirmed, “permit[ting an] alleged

unfair labor practice to reach fruition and thereby render[ing]

meaningless the Board’s remedial authority is irreparable

harm.” Frankl, 2011 WL 3250637, at *22 (emphasis added).

[12] The district court did not abuse its discretion in deter-

mining that the Director had shown a likelihood of irreparable

harm. Given the likelihood of success established above,

CHHP’s refusal to bargain in good faith is likely to cause

irreparable harm absent an injunction. “[F]ailure to bargain in

good faith[ ] has long been understood as likely causing an

irreparable injury to union representation.” Frankl, 2011 WL

3250637, at *23.

[13] 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

16

Although the foregoing analysis has established that the district court

did not clearly err in calculating the size of the bargaining unit, we also

note that the Director has presented some evidence that union incumbents

comprised a majority of the bargaining unit even if we accepted CHHP’s

arguments that the unit should include the 62 RNs to whom offers were

made as of March 26th or the 61 RNs on the May 16th payroll. See supra

note 13.

19756 SMALL v. AVANTI HEALTH SYSTEMS

claim, that failure to bargain will likely cause a myriad of

irreparable harms.

First, a failure to bargain eliminates the possibility that the

union and employer will negotiate a collective bargaining

agreement as long as that failure continues. Therefore, with-

out bargaining, employees are denied the opportunity to

achieve the economic benefits that a CBA can secure for

workers. This harm is likely to be irreparable because “the

Board generally does not order retroactive relief, such as back

pay or damages, to rank-and-file employees for the loss of

economic benefits that might have been obtained had the

employer bargained in good faith.” Frankl, 2011 WL

3250637, at *23. Moreover, even if the Board did order such

relief, monetary damages would not make the employees

whole, because “[t]he value of the right to enjoy the benefits

of union representation is immeasurable in dollar terms once

it is delayed or lost.” Dunn, 241 F.3d at 667 (quoting Levine

v. C & W Mining Co., 465 F. Supp. 690, 694 (N.D. Ohio),

aff’d 610 F.2d 432 (6th Cir. 1979)).

Second, unions provide a range of non-economic benefits

to employees that are not realized when an employer refuses

to bargain with the union. For example, unions can ensure

greater job security by negotiating seniority provisions into

collective bargaining agreements and union representatives

can represent employees during grievance and arbitration pro-

cedures. In sum, as the Supreme Court has explained, the

“union [is] essential to give laborers opportunity to deal on an

equality [sic] with their employer.” NLRB v. Jones &

Laughlin, 301 U.S. 1, 33 (1937). Employees who chose to be

represented by the union, to bargain collectively, and to share

common cause with their fellow employee will be denied

those rights until the Board rules, absent an injunction. This

harm is likely to be irreparable because the Board’s “forward-

looking order cannot fully compensate the employees . . . for

the variety of benefits that good-faith collective bargaining

SMALL v. AVANTI HEALTH SYSTEMS 19757

with the Union might otherwise have secured for them in the

present.” Bloedorn, 276 F.3d at 299.

Third, a failure to bargain in good faith threatens industrial

peace. The Supreme Court has repeatedly recognized that the

overriding policy of the NLRA is “industrial peace”; the

NLRA secures this goal in part by “permit[ting] unions to

develop stable bargaining relationships with employers,

which will enable the unions to pursue the goals of their

members, and this pursuit, in turn, will further industrial

peace.” Fall River, 482 U.S. at 38-39. In fact, “[t]he obliga-

tion of collective bargaining is the core of the Act, and the

primary means fashioned by Congress for securing industrial

peace.” Int’l Union of Elec., Radio & Mach. Workers v.

NLRB, 426 F.2d 1243, 1249 (D.C. Cir. 1970). Congress made

this clear by including the following statement in the text of

the NLRA:

It is hereby declared to be the policy of the United

States to eliminate the causes of certain substantial

obstructions to the free flow of commerce and to

mitigate and eliminate these obstructions when they

have occurred by encouraging the practice and pro-

cedure of collective bargaining and by protecting the

exercise by workers of full freedom of association,

self-organization, and designation of representatives

of their own choosing, for the purpose of negotiating

the terms and conditions of their employment or

other mutual aid or protection.

29 U.S.C. § 151 (emphases added). The Board cannot fashion

a retroactive remedy for the harm to industrial peace that

occurs during the period that the employer refuses to bargain.

Fourth, a delay in bargaining weakens support for the

union, and a Board order cannot remedy this diminished level

of support. We recently agreed with the Seventh Circuit and

concluded that “[a]s time passes, the benefits of unionization

19758 SMALL v. AVANTI HEALTH SYSTEMS

are lost and the spark to organize is extinguished. The depri-

vation to employees from the delay in bargaining and the dim-

inution of union support is immeasurable.” Frankl, 2011 WL

3250637, at *23 (quoting NLRB v. Electro-Voice, Inc., 83

F.3d 1559, 1573 (7th Cir. 1996)); see also Machine Workers,

426 F.2d at 1249.17

As the NLRB held nearly seventy years ago:

Employees join unions in order to secure collective

bargaining. Whether or not the employer bargains

with a union chosen by his employees is normally

decisive of its ability to secure and retain its mem-

bers. Consequently, the result of an unremedied

refusal to bargain with a union, standing alone, is to

discredit the organization in the eyes of the employ-

ees, to drive them to a second choice, or to persuade

them to abandon collective bargaining altogether.

Frankl, 2011 WL 3250637, at *23 (quoting Karp Metal

Prods. Co., 51 N.L.R.B. 621, 624 (1943)). Once the union’s

support has diminished, it will likely suffer irreparable harm

because “[w]ith only limited support . . . the Union will be

unable to bargain effectively regardless of the ultimate relief

granted by the board.” Dunn, 241 F.3d at 667.

[14] CHHP attempts to distinguish our recent opinion in

Frankl by arguing that in Frankl there was evidence in the

record that the employer negotiated in bad faith, whereas in

this case CHHP simply failed to negotiate at all. Although this

is an accurate description of the facts in Frankl, it is not a per-

17

The NLRB process sometimes takes years to conclude; but, “[t]ime is

usually of the essence [in labor disputes].” Frankl, 2011 WL 3250637, at

*1 (quoting Miller, 19 F.3d at 455 n.3) (alterations in original). “Congress

recognized that delay is inherent in the procedures which it prescribed for

settling labor disputes. That delay was cited as the reason for enacting sec-

tion[ ] 10(j).” Levine v. C & W Mining Co., 610 F.2d 432, 437 (6th Cir.

1979).

SMALL v. AVANTI HEALTH SYSTEMS 19759

suasive means of distinguishing it with regard to the likeli-

hood of irreparable harm. Irreparable harm is at least as likely

to follow from a failure to bargain at all as from bargaining

in bad faith. Frankl did not require that the Director demon-

strate bad faith bargaining as opposed to a failure to bargain

at all. In fact, Frankl observed that a “failure to bargain in

good faith[ ] has long been understood as likely causing an

irreparable injury to union representation.” Frankl, 2011 WL

3250637, at *23. The text of the NLRA makes it illegal for

an employer to “refuse to bargain,” 29 U.S.C. § 158(a)(5),

and then defines the obligation to bargain as including an

obligation to do so in good faith, 29 U.S.C. § 158(d). Under

the NLRA, if the union represents a majority of employees,

an employer must bargain with that union and must do so in

good faith. Under CHHP’s proposed rule, however, the Direc-

tor could establish a likelihood of irreparable harm if the

employer did bargain but did so in bad faith, but could not

meet this standard if the employer simply refused to engage

in any bargaining.18 Such a distinction is contrary to our

caselaw, common sense, and the text of the NLRA. In many

ways a refusal to bargain at all is more harmful than bargain-

18

In addition, CHHP asserted at oral argument that we should also

require the Director to show that the employer was engaged in anti-union

activities, such as retaliatory firings of union members before finding a

likelihood of irreparable harm. We rejected this argument in Frankl when

we found a likelihood of irreparable harm resulting both from the failure

to bargain in good faith and from the employer’s retaliatory firing of union

members. See Frankl, 2011 WL 3250637, at *23. As discussed above,

CHHP’s failure to bargain is likely to cause irreparable injury. We do

note, however, that even if anti-union animus were required, and it is not,

there is evidence in the record of such anti-union animus. First, Karykeion

told the CNA that CHHP “would do whatever was necessary to make[ ]

sure they didn’t have the Union,” and CHHP insisted that Karykeion reject

the CBA before the purchase of Community was completed. Second, as

the likelihood of success discussion demonstrates, under any interpretation

of the numbers, the CNA represented a majority of the RNs in the bargain-

ing unit. CHHP’s implausible attempts to twist the numbers, including

such tactics as labeling RNs as union incumbents on one list but not

another, provide further evidence of anti-union animus.

19760 SMALL v. AVANTI HEALTH SYSTEMS

ing but doing so in bad faith. As the Supreme Court held in

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937),

[e]xperience has abundantly demonstrated that the

recognition of the right of employees to self-

organization and to have representatives of their own

choosing for the purpose of collective bargaining is

often an essential condition of industrial peace.

Refusal to confer and negotiate has been one of the

most prolific causes of strife. This is such an out-

standing fact in the history of labor disturbances that

it is a proper subject of judicial notice and requires

no citation of instances.

Id. at 42 (emphasis added).

[15] The requirement that the bargaining be done in good

faith is the second-part of a two-part analysis; the first

requirement is that the employer recognize and enter into bar-

gaining with the union. In other words, a failure to bargain at

all is a per se failure to bargain in good faith. The Supreme

Court erased any doubt on this question nearly fifty years ago

in NLRB v. Katz, 369 U.S. 736 (1962):

The duty ‘to bargain collectively’ enjoined by

§ 8(a)(5) is defined by § 8(d) as the duty to ‘meet . . .

and confer in good faith with respect to wages,

hours, and other terms and conditions of employ-

ment.’ Clearly, the duty thus defined may be violated

without a general failure of subjective good faith; for

there is no occasion to consider the issue of good

faith if a party has refused even to negotiate in fact-

‘to meet . . . and confer’-about any of the mandatory

subjects.

Id. at 742-43.

[16] In sum, a failure to bargain at all is likely to cause

irreparable harm “absent some unusual circumstance indicat-

SMALL v. AVANTI HEALTH SYSTEMS 19761

ing that union support is not being affected or that bargaining

could resume without detriment as easily later as now.”

Frankl, 2011 WL 3250637, at *23. Those unusual circum-

stances are not present here, and therefore the district court

did not abuse its discretion in finding a likelihood of irrepara-

ble harm.

2.

Moreover, even if a failure to bargain in good faith were

not ordinarily enough to establish irreparable harm, the

Supreme Court has found that employees’ general interest in

“being represented as soon as possible” is “especially height-

ened in a situation where many of the successor’s employees,

who were formerly represented by a union, find themselves

after the employer transition in essentially the same enter-

prise, but without their bargaining representative.” Fall River,

482 U.S. at 50. The Court discussed the irreparable harm that

would result from the failure to recognize the union in the

successor employer context: “[h]aving the new employer

refuse to bargain with the chosen representative of these

employees ‘disrupts the employees’ morale, deters their orga-

nizational activities, and discourages their membership in

unions.’ ” Id. (quoting Franks Bros Co. v. NLRB, 321 U.S.

702, 704 (1944)).19 We agree with the Seventh Circuit that

Fall River guides our irreparable harm inquiry in the succes-

sor employer context. See Bloedorn, 276 F.3d at 298 (quoting

extensively from Fall River). In fact, as the Seventh Circuit

held, “[g]iven the uncertainties that both the union and its

members face during the transition, a successor’s refusal to

recognize the union . . . inflicts a particularly potent wound

19

Of course, the Supreme Court noted that employers must also be able

to rearrange their businesses when the need arises, and therefore employ-

ers are not obligated to bargain with the union if union incumbents do not

comprise a majority of the bargaining unit at the successor employer. Fall

River, 482 U.S. at 40. Here, as discussed above, the Director is likely to

succeed on the merits of his claim that incumbents do constitute a majority

of the bargaining unit.

19762 SMALL v. AVANTI HEALTH SYSTEMS

on the union and its members.” Id. Moreover, “[t]he longer

that the successor employer is permitted to benefit from a

state of affairs that its own wrongdoing has brought about, the

less likely it is that a final order in the Board’s favor will be

able to redress the wrongs that have been done and to restore

the status quo ante.” Id. at 300.

3.

CHHP also argues that the Director has not demonstrated

a likelihood of irreparable harm because the CNA could have

sought a new election, thereby demonstrating that injunctive

relief is not the only way to protect the CNA’s interests. How-

ever, unions are entitled to a presumption of majority support

after they are certified by the NLRB. Fall River, 482 U.S. at

39. In a successor employer situation, “the successor’s duty is

to recognize and bargain with the union from the outset, not

simply to permit a new vote on the matter.” Bloedorn, 276

F.3d at 298. As discussed above, without an injunction, the

union is likely to lose support, and thus, an election at some

future date would not be an adequate legal or equitable remedy.20

20

CHHP relies on McDermott to argue that the Director’s delay in filing

the petition undermines his claim of irreparable harm. However, the

McDermott court recognized that “delay by itself is not a determinative

factor in whether the grant of interim relief is just and proper.” 593 F.3d

at 958 (internal quotation marks omitted). McDermott found that “delay

is only significant if the harm has occurred and the parties cannot be

returned to the status quo or if the board’s final order is likely to be as

effective as an order for interim relief.” McDermott, 593 F.3d at 965. As

we noted in Frankl, McDermott is distinguishable because in McDermott,

we were applying a heightened standard due to the employer’s First

Amendment interests. See Frankl, 2011 WL 3250637, at *24 (citing

McDermott, 593 F.3d at 958). Here, there are no such interests. Moreover,

in McDermott we were deferentially reviewing the denial of an injunction,

whereas in this case we are deferentially reviewing the grant of an injunc-

tion. See id. at *25. Finally, in McDermott, the remedy at issue was rein-

statement of employees, and we noted that “the parties appear[ed] to be

waiting for the Board’s adjudication.” McDermott, 593 F.3d at 965. Here,

the question is one of good faith bargaining, and just as in Frankl, the

SMALL v. AVANTI HEALTH SYSTEMS 19763

4.

As the Frankl court held, the “same evidence and legal

conclusions” relevant to likelihood of success, “along with

permissible inferences regarding the likely interim and long-

run impact of the unfair labor practices that were likely to be

found, preclude the conclusion that the District Court abused

its discretion in finding a likelihood of irreparable harm.”

Frankl, 2011 WL 3250637, at *23. Here permissible infer-

ences regarding the impact of the failure to bargain in good

faith lead us to conclude that the district court did not abuse

its discretion in finding a likelihood of irreparable harm.

C. Balance of the Equities

[17] “In considering the balance of hardships, the district

court must take into account the probability that declining to

issue the injunction will permit the alleged unfair labor prac-

tice to reach fruition and thereby render meaningless the

Board’s remedial authority.” Frankl, 2011 WL 3250637, at

*25 (quoting Miller, 19 F.3d at 460) (internal brackets omit-

ted). Without an injunction, CHHP “will have succeeded at

least for now in its efforts to resist the union organizing

effort.” Dunn, 241 F.3d at 667 (quoting Levine, 465 F. Supp.

at 694). Additionally, if support for the CNA decreases with-

out an injunction, the CNA “will be unable to bargain effec-

tively regardless of the ultimate relief granted by the

[NLRB].” Id. Therefore, “the District Court’s determination

union in this case is willing and able to represent the workers. Thus, “the

possibility that a collective bargaining agreement could be reached in the

interim and statutory rights restored qualifies as relief that could not be

achieved retroactively through an NLRB order.” Frankl, 2011 WL

3250637, at *25. Moreover, in Frankl we held that delay did not under-

mine the Director’s irreparable harm argument even though there was a

nearly three year delay. Id. at *24. Here, the Director filed a § 10(j) peti-

tion less than three months after the union filed an unfair labor practice

complaint.

19764 SMALL v. AVANTI HEALTH SYSTEMS

that the Regional Director had shown likely irreparable harm

to the collective bargaining process meant that there was also

considerable weight on his side of the balance of the hard-

ships.” Frankl, 2011 WL 3250637, at *25.

[18] On the other side of the balance of the equities, when

“[t]he company is not compelled to do anything except bar-

gain in good faith,” the risk from a bargaining order is “mini-

mal.” Dunn, 241 F.3d at 667. The employer is not required by

such an order to do anything that would cause it harm; it need

do nothing more than follow the ordinary obligations of an

employer under the law. If the injunction is upheld, CHHP

would of course suffer the financial and administrative costs

of good faith bargaining; these costs, however, are borne by

both the union and the employer and are comparatively minor.

Id. at 668.

CHHP argues that the district court erred because it failed

to consider that Community recently emerged from bank-

ruptcy. Therefore, CHHP argues, a preliminary injunction

would not just include bargaining costs, but would threaten

Community’s viability.21 CHHP alleges that to reach an agree-

ment with the CNA, it:

will almost certainly have to agree to one or more of

the contractual provisions that led Community down

the path to bankruptcy in the first place. If the

ordered negotiations are unsuccessful, [CHHP] will

be faced with the prospect of a strike, which would

be equally disastrous, not only to Community’s

21

Of course, CHHP has not shown that the CBA for RNs led to Karyk-

eion’s bankruptcy. RNs are just one part of a hospital’s staff; Karkyeion

employed hundreds of other employees. Moreover, even if the CBA had

led to the bankruptcy, as discussed above, CHHP is not required to adopt

the CBA; in addition, according to CHHP’s own assertions, it has already

fixed several of the cost overruns that led to the bankruptcy in the first

place.

SMALL v. AVANTI HEALTH SYSTEMS 19765

financial viability, but to the availability of health

care services to the community.

CHHP does not explain why we should assume that the CNA

would be so unreasonable as to insist on terms that would put

Community out of business.22 More important, even if the

CNA does persist in its demand that CHHP adopt Karyk-

eion’s contractual provisions, CHHP is not required to acqui-

esce in this demand. The district court merely ordered CHHP

to bargain in good faith. In so bargaining, “[a]n employer is

not required to make concessions or yield any position fairly

maintained, but is obliged to make some reasonable effort in

some direction to compose his differences with the union.”

Frankl, 2011 WL 3250637, at *19 (internal quotation marks

and citations omitted) (quoting Regency Serv. Carts, Inc., 345

N.L.R.B. 671, 671 (2005)).

[19] Finally, CHHP argues that if the NLRB ultimately

sides with CHHP, it would face the “impossible prospect of

‘undoing’ its agreement,” thereby creating “unexplained

levels of uncertainty which [would] result in extreme preju-

dice” to CHHP. CHHP’s argument would lead to the conclu-

sion that a district court in § 10(j) proceedings could never

order the parties to bargain in good faith. See Dunn, 241 F.3d

at 669. As we explained above, our cases reject any such con-

clusion. Moreover, “the union should not bear the burden of

22

Indeed many unions across the country have agreed to contract con-

cessions in order to protect the long-term viability of their companies and

their jobs. See Terrence Dopp, New Jersey Turnpike Board Accepts Give-

backs to Avoid Firings, Bloomberg Businessweek, July 1, 2011,

http://www.bloomberg.com/news/2011-04-29/new-jersey-turnpike-board-

accepts-toll-worker-givebacks-to-avoid-firings.html (noting that unions

agreed to “nearly all stipulations sought by the authority,” including vot-

ing to accept wage cuts, in order to save jobs); David Bailey, UAW

workers ratify concessions to Ford, Reuters, Mar. 9, 2009,

http://www.reuters.com/ article/2009/03/09/us-ford-uaw-idUSTRE5286AI

20090309 (noting that the United Auto Workers had agreed to contract

concessions “in order to be part of the solution” to the problems facing

Ford during the recession).

19766 SMALL v. AVANTI HEALTH SYSTEMS

recovering from the company’s illegal activities.” Dunn, 241

F.3d at 668.23 Weighing these competing interests, we hold

that it was not an abuse of discretion for the district court to

find that the balance of equities weighed in favor of granting

an injunction.

D. Public Interest

[20] Lastly, the district court found that “it would be in the

public interest to recognize the CNA as the collective bargain-

ing representative pending ultimate determination of the

alleged unfair labor practices.” “In § 10(j) cases, the public

interest is to ensure that an unfair labor practice will not suc-

ceed because the Board takes too long to investigate and adju-

dicate the charge.” Frankl, 2011 WL 3250637, at *26

(quoting Miller, 19 F.3d at 460). Moreover, the public interest

favors applying federal law correctly. See N.D. v. Haw. Dep’t

of Educ., 600 F.3d 1104, 1113 (9th Cir. 2010) (“[I]t is obvious

that compliance with the law is in the public interest.”).

Therefore, “ordinarily . . . when, as here, the Director makes

a strong showing of likelihood of success and of likelihood of

irreparable harm, the Director will have established that pre-

liminary relief is in the public interest.” Frankl, 2011 WL

3250637, at *26. The district court did not abuse its discretion

in finding that the public interest supports the grant of a pre-

liminary injunction.

[21] In sum, the district court correctly applied the Winter

factors and did not abuse its discretion in granting the prelimi-

nary injunction.

23

Moreover, the CNA and CHHP would be bargaining with the knowl-

edge of the NLRB’s continuing proceedings; therefore, any agreements

could provide for an exception if the NLRB ultimately ruled for CHHP.

See Asseo v. Pan American Grain Co., Inc., 805 F.2d 23, 28 (1st Cir.

1986) (“The employer can condition the continued efficacy of an agree-

ment (if indeed any agreement is reached) upon the final disposition by the

Board.”).

SMALL v. AVANTI HEALTH SYSTEMS 19767

V.

CHHP also argues that even if the injunction was proper

under Winter, the district court impermissibly infringed on the

NLRB’s authority. This argument misapprehends the purpose

of § 10(j), which is “ ‘to preserve the [NLRB’s] remedial

power while it processes the charge.’ ” McDermott, 593 F.3d

at 957 (quoting Miller, 19 F.3d at 459-60). The § 10(j)

scheme responds to the delay inherent in the NLRB’s pro-

cesses; under § 10(j), the NLRB can petition the courts for an

injunction so that it can decide the issue in due course without

allowing the unfair labor practice to reach fruition. That is

exactly what the Board did here; thus it is illogical to suggest

that the grant of an injunction in the circumstances contem-

plated by the statute infringes on the NLRB’s authority as

delineated by that statute. Rather, CHHP’s argument is, in

essence, an implicit attack on the legality of § 10(j), which

has been a fundamental part of our labor law for over 60 years

and has been regularly applied by the courts throughout that

entire period. We reject this argument as clearly contrary to

well established law.

CHHP seeks to distinguish this case from others where pre-

liminary injunctions were granted because, CHHP argues, this

case involves a “complicated” employee headcount issue.

CHHP argues that representational issues should be resolved

by the NLRB, not the courts, citing to Hotel Employees, Res-

taurant Employees Union, Local 2 v. Marriott Corp., 961

F.2d 1464, 1468 (9th Cir. 1992). First, the headcount in this

case is not complicated, and to the extent it appears so, it is

only due to CHHP’s obfuscation of the basis for its employee

counts. Moreover, even if this were a complicated issue, the

district court’s decision is guided by the four Winter factors;

we reject CHHP’s attempt to add in a fifth factor: complexity

of the issues.

Second, while Marriott did discuss the NLRB’s primary

jurisdiction over representational issues, it did not deal with

19768 SMALL v. AVANTI HEALTH SYSTEMS

successorship issues of the kind we confront here. Successor-

ship issues are not representational issues in the sense Marri-

ott discussed. In Marriott and what are called “R” cases, the

focus of inquiry is the certification or decertification decision.

In successorship cases, on the other hand, the question is not

whether the union actually is the choice of a majority but

whether it continues to enjoy incumbent status, such that the

obligation to bargain continues unless the union is decertified.

Third, Marriott was not a § 10(j) case. The purpose of a

§ 10(j) injunction is not to decide the issue and remove it from

the NLRB’s jurisdiction, but rather “ ‘to preserve the

[NLRB’s] remedial power while it processes the charge.’ ”

McDermott, 593 F.3d at 957 (quoting Miller, 19 F.3d at 459-

60); see also Levine, 465 F. Supp. at 691 (“By seeking tempo-

rary injunctive relief, the Board does not surrender its author-

ity to determine the merits of the charges filed.”). The district

court’s injunction preserves rather than impinges upon the

NLRB’s authority.

Finally, CHHP argues that the scope of the injunction

impinged on the NLRB’s authority because the district court

ordered CHHP to embody any agreement in writing.24 In

essence, CHHP argues that the district court ordered relief

which should only be ordered by the NLRB. But, we recently

rejected that exact argument, finding that “in most bad-faith

bargaining cases, a § 10(j) remedy will be identical, or at least

very similar, to the Board’s final order.” Frankl, 2011 WL

3250637, at *26.25

24

CHHP also asks for a six-month temporal limitation on the district

court’s preliminary injunction. The Frankl court found that the district

court was not required to enter such a limitation and therefore could not

have abused its discretion in deciding not to do so. Frankl, 2011 WL

3250637, at *26 n.18. The same logic applies in this case. We also find

no error in the district court’s request for a status report on compliance

with the preliminary injunction.

25

The district court’s order in Frankl required the parties to “embody

[any] understanding in a signed agreement,” the exact language at issue

here. See also Norelli v. HTH Corp., 699 F. Supp. 2d 1208, 1208 (D. Haw.

2010).

SMALL v. AVANTI HEALTH SYSTEMS 19769

The district court did not abuse its discretion in granting the

preliminary injunction; moreover, it did not impermissibly

infringe on the NLRB’s authority. Accordingly, the district

court’s order is AFFIRMED.