RONALD HOOKS V. NEXSTAR BROADCASTING, INC., No. 21-35252 (9th Cir. 2022)
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Nexstar Broadcasting, Inc. owns and operates numerous local television stations. Nexstar acquired KOIN-TV, a local television station in Portland, Oregon, from LIN Television Corporation (LIN). When it acquired KOIN-TV, Nexstar adopted the CBA between Local 51 and LIN. 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.
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, the district court granted a preliminary injunction. An administrative law judge ruled in favor of the Regional Director, finding that Nexstar had violated Section 8(a)(1) and (5) of the NLRA. The Board affirmed the ALJ decision and ordered relief for the union. The Ninth Circuit vacated the district court’s order granting a petition of the Regional Director of the National Labor Relations Board (“Board”) for preliminary injunctive relief.
The panel held that a Section 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. The panel concluded that the Section 10(j) injunction met the first prong. The panel held that the Section 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 Section 10(j) injunction in the future.
Court Description: National Labor Relations Act / Mootness. 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.
The court issued a subsequent related opinion or order on June 29, 2023.
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