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.