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
Relations Board; NATIONAL LABOR No. 08-56668
RELATIONS BOARD,
Plaintiffs-Appellees, D.C. No.
5:08-cv-01039-
v. SGL-OP
OPERATIVE PLASTERERS’ AND
CEMENT MASONS’ INTERNATIONAL
ASSOCIATION LOCAL 200, AFL-CIO,
Defendant-Appellant.
JAMES F. SMALL, Regional Director
of Region 21 of the National
Labor Relations Board for and on
behalf of the National Labor
Relations Board,
Plaintiff, No. 08-56942
and D.C. No.
NATIONAL LABOR RELATIONS 5:08-cv-01039-
BOARD, SGL-OP
Plaintiff-Appellant, OPINION
v.
OPERATIVE PLASTERERS’ AND
CEMENT MASONS’ INTERNATIONAL
ASSOCIATION LOCAL 200, AFL-CIO,
Defendant-Appellee.
9795
9796 SMALL v. OPERATIVE PLASTERERS’
Appeals from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted
February 4, 2009—Pasadena, California.
Filed July 8, 20101
Before: Harry Pregerson, Susan P. Graber, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw
1
By separate order, we have withdrawn our earlier memorandum dispo-
sition, which we replace with this opinion.
SMALL v. OPERATIVE PLASTERERS’ 9799
COUNSEL
John J. Davis, Jr., Paul L. More, Davis, Cowell & Bowe LLP,
San Francisco, California, for the defendant-appellants.
Ronald Meisburg, John E. Higgins, JR., Barry J. Kearney,
Judith I. Katz, Steven L. Sokolow, Richard J. Lussier,
National Labor Relations Board, Washington, D.C., for the
appellee.
Stephen J. Schultz, Mark T. Bennett, Marks, Golia & Finch
LLP, San Diego, California, for the amicus curiae.
OPINION
WARDLAW, Circuit Judge:
This appeal arises from a dispute between two unions over
the right to perform certain plastering work as subcontractors
for contractor Standard Drywall, Inc. (“SDI”). The National
Labor Relations Board (the “Board”) awarded the work to the
Southwest Regional Council of Carpenters, United Brother-
hood of Carpenters and Joiners of America (“the Carpen-
ters”), whereupon the other union, Operative Plasterers’ and
Cement Masons’ International Association, Local 200, AFL-
CIO (“Local 200”), filed two state court lawsuits against SDI,
9800 SMALL v. OPERATIVE PLASTERERS’
alleging (1) violation of wage and hour laws; and (2) tortious
interference with contract. James F. Small, the Regional
Director of Region 21 of the Board (“Regional Director”)
lodged a complaint with the Board, charging that the two state
lawsuits are unlawful under the National Labor Relations Act
(“NLRA” or the “Act”) because they seek to coerce SDI to
reassign the plastering work to Local 200. The Regional
Director then sought and was awarded a preliminary injunc-
tion against Local 200 to halt the state court proceedings
pending the Board’s final determination as to their legality
under the Act. We must decide whether the district court
abused its discretion in enjoining the state court proceedings
and, if not, whether the district court had subject matter juris-
diction to modify the injunction after the notice of appeal was
filed. We affirm the entry of the preliminary injunction, but
reverse the district court’s order modifying the injunction.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the early 1930s, Congress declared that “the individual
unorganized worker is commonly helpless to exercise actual
liberty of contract and to protect his freedom of labor, and
thereby to obtain acceptable terms and conditions of employ-
ment.” 29 U.S.C. § 102. Our nation’s labor laws protect
employees’ rights to organize in unions and to bargain collec-
tively. See NLRB v. Am. Nat’l Ins. Co., 343 U.S. 395, 401-02
(1952); see also 29 U.S.C. §§ 157, 158. And although the
“National Labor Relations Act is designed to promote indus-
trial peace by encouraging the making of voluntary agree-
ments governing relations between unions and employers,”
Am. Nat’l Ins. Co., 343 U.S. at 401-02, sometimes, unions
must disturb the peace to fight for their members’ interests,
see NLRB v. Ins. Agents’ Int’l Union, 361 U.S. 477, 489
(1960) (“The presence of economic weapons in reserve, and
their actual exercise on occasion by the parties, is part and
parcel of the system . . . .”). After all, the very purpose of
labor unions is to advocate zealously for their members. This
appeal marks the latest round in a long and protracted fight
SMALL v. OPERATIVE PLASTERERS’ 9801
between two unions over plastering work in Southern Califor-
nia.
In March 2004, SDI, a construction contractor, was
retained to oversee the plastering work on a Fine Arts Project
at the California State University campus in Fullerton, Cali-
fornia. There was much work to be done, including all interior
and exterior plastering, bonding of all the ceilings and walls,
waterproofing of all the plaster, adhering ornamentation to the
walls, and installing insulation. SDI needed a subcontractor to
do the work, and two competing labor unions wanted the job:
the Carpenters and Local 200. In March 2004, SDI entered
into a subcontract with the Carpenters, with whom SDI had
enjoyed a collective bargaining relationship since the mid-
1990s. At that point, the gloves came off, and the unions’
fight for their members’ rights to the work was on.
A. State Court Litigation and 10(k) Hearings
Local 200 threw the first punch. At the time, Local 200
operated the only state-approved apprenticeship program. In
October 2004, it filed suit against SDI in Los Angeles County
Superior Court, alleging that SDI violated California Labor
Code § 1777.5 by failing to employ plastering apprentices on
public works projects, and that SDI violated wage and hour
laws on past, present, and future public works projects (“the
Wage and Hour Lawsuit”). Local 200 sought payment of
wages lost from SDI’s failure to employ its members on pub-
lic works projects and an injunction against further violations.
In May 2005, Local 200 representatives offered to dismiss the
Wage and Hour Lawsuit if SDI would sign an agreement
assigning Local 200 the disputed plastering work. SDI
relented, agreeing to reassign some of the plastering work
from the Carpenters to Local 200.
The Carpenters hit back. They threatened to strike SDI if
SDI went ahead with its plan to reassign some of the disputed
work to Local 200. To prevent a strike, SDI filed a charge
9802 SMALL v. OPERATIVE PLASTERERS’
with the Board, alleging that the Carpenters’ threatened strike
was an unfair labor practice under the NLRA. 29 U.S.C.
§ 158(b)(4)(ii)(D). That section makes it an “unfair labor
practice” for a labor organization
to threaten, coerce, or restrain any person engaged in
commerce or in an industry affecting commerce,
where in either case an object thereof is— . . . (D)
forcing or requiring any employer to assign particu-
lar work to employees in a particular labor organiza-
tion or in a particular trade, craft, or class rather than
to employees in another labor organization or in
another trade, craft or, class . . . .
Id. The Board was authorized “to hear and determine the dis-
pute” pursuant to section 10(k) of the NLRA. 29 U.S.C.
§ 160(k).
The Board concluded that there was “reasonable cause to
believe that the Carpenters used proscribed means to enforce
its claim to the work in dispute.” Acting pursuant to its sec-
tion 10(k) authority, the Board assigned the work to the Car-
penters, finding that it had a collective bargaining agreement
with SDI; that SDI preferred that the Carpenters perform the
work; that area and industry practice weighed in favor of
assigning the work to the Carpenters; and that the Carpenters
members were sufficiently skilled to perform the work. Sw.
Reg’l Council of Carpenters (Standard Drywall, Inc.), 346
N.L.R.B. 478 (2006) (hereinafter “SDI I”).
Local 200 then sought other means to secure the disputed
work for its members. Following the Board’s decision to
award the disputed work to the Carpenters, Local 200 notified
SDI that it would drop the Wage and Hour Lawsuit as to the
Fine Arts Project, but insisted on prosecuting the suit as to all
other public works projects. With its back against the wall,
SDI wrote to the Carpenters explaining that SDI “may have
no choice but to assign plastering work to employees repre-
SMALL v. OPERATIVE PLASTERERS’ 9803
sented by [Local 200] on projects on the enclosed list and on
any new projects in Southern California.” The list set forth the
projects which SDI determined were the subject of Local
200’s lawsuit. The letter also requested that the Carpenters
inform SDI of its position should SDI assign plastering work
to members of Local 200.
The Carpenters wrote back, informing SDI that if it “at-
tempts to reassign any work currently being performed by
members of the Carpenters Union, [it would] immediately
strike the Company.” In February 2006, SDI filed another
unfair labor practice charge against the Carpenters, once again
alleging that the Carpenters’ threat to strike violated the
NLRA. As in the first 10(k) proceeding, the Board found that
both the Carpenters and Local 200 laid claim to disputed work
—in this case, all current and future public works projects
constructed by SDI in twelve California counties. The Board
again considered the parties’ previous relationships with one
another, the unions’ skills and experience, area and industry
practice, and other relevant factors, and “conclude[d] that
employees represented by Carpenters are entitled to perform
the work in dispute.” Sw. Reg’l Council of Carpenters (Stan-
dard Drywall, Inc.), 348 N.L.R.B. 1250, 1255 (2006) (herein-
after “SDI II”).
Despite the Board’s second adverse 10(k) determination,
Local 200 fought on. It again amended its complaint in the
Wage and Hour Lawsuit, this time to include claims on behalf
of a class of plastering apprentices enrolled in Local 200’s
state-approved apprenticeship program which sought lost
wages due to SDI’s failure to employ its members on public
works projects. The amended complaint also sought an
injunction against further violations. In addition, Local 200
filed another state lawsuit in Los Angeles County Superior
Court, alleging that SDI and the Carpenters tortiously inter-
fered with Local 200’s economic advantage in its relation-
ships with plastering subcontractors (the “Tortious
Interference Lawuit”). Local 200 sought damages for work
9804 SMALL v. OPERATIVE PLASTERERS’
that its members lost as a result of an alleged kickback
scheme between SDI and the Carpenters, and requested an
injunction against further kickbacks. In June 2008, the Los
Angeles County Superior Court dismissed the Tortious Inter-
ference Lawsuit, concluding that it was preempted by the
NLRA. Local 200 appealed that ruling, which was stayed
pending resolution of the Board proceedings.
B. National Labor Relations Board Proceedings
At this point, the Regional Director filed a complaint with
the Board, alleging that Local 200 committed an unfair labor
practice by filing the Wage and Hour and Tortious Interfer-
ence Lawsuits because Local 200’s objective was unlawful.
The Regional Director asserted that the true objective of the
suits was to force SDI to reassign its plastering work to Local
200 in violation of 29 U.S.C. § 158(b)(4)(ii)(D). The Regional
Director, as an agent of the Board, 29 C.F.R. § 102.5, is
authorized to file complaints with the Board when it appears
that an unfair labor practice charge has merit. See 29 C.F.R.
§§ 102.15, 102.74. Complaints are heard by an administrative
law judge (“ALJ”), who makes findings of fact, conclusions
of law, and “recommendations as to what disposition of the
case should be made” by the Board. 29 C.F.R. § 102.45(a).
The ALJ conducted a hearing on the Regional Director’s
Complaint; found that Local 200 committed an unfair labor
practice by prosecuting the two state court lawsuits, which
had unlawful objectives; and recommended that the Board
order Local 200 to withdraw the two lawsuits. As to the Wage
and Hour Lawsuit, the ALJ found that “Local 200’s ongoing
pursuit of [it] . . . is aimed at achieving the unlawful objective
of coercing SDI into assigning plastering work to Local 200
represented employees.” As to the Tortious Interference Law-
suit, the ALJ found that the suit’s “effect is to cause SDI to
assign work to Local 200” and that “[t]his is coercive con-
duct.”
SMALL v. OPERATIVE PLASTERERS’ 9805
C. District Court Proceedings
In August 2008, while the Board was considering the ALJ’s
recommendation, the Regional Director petitioned the United
States District Court for the Central District of California for
injunctive relief pursuant to section 10(l) of the NLRA. Sec-
tion 10(l) permits a district court to grant injunctive relief
pending the Board’s resolution of charges alleging unfair
labor practices.2 29 U.S.C. § 160(l). The petition requested
only that the district court temporarily enjoin the continued
prosecution of the two state court lawsuits pending the
Board’s review of the ALJ’s 2008 decision.
The district court granted the petition on September 15,
2008, concluding that temporary injunctive relief was appro-
priate. The district court held that the Regional Director “has
established a likelihood of success on the merits; i.e., that he
will be able to establish that the state court actions have been
filed and prosecuted to accomplish an objective that is unlaw-
ful under 29 U.S.C. § 158(b)(4)(ii)(D).” Relying on our deci-
sion in Miller ex rel. NLRB v. California Pacific Medical
Center, 19 F.3d 449, 460 (9th Cir. 1994) (en banc), the court
“presumed the second element of irreparable injury” based on
its conclusion that the Regional Director had established the
2
Section 10(l) of the NLRA, 29 U.S.C. § 160(l), provides: “Whenever
it is charged that any person has engaged in an unfair labor practice within
the meaning of paragraph (4)(A), (B), or (C) of section 158(b) of this title
. . . the preliminary investigation of such charge shall be made forthwith
. . . . If, after such investigation, the officer . . . has reasonable cause to
believe such charge is true and that a complaint should issue, he shall, on
behalf of the Board, petition any United States district court within any
district where the unfair labor practice in question has occurred . . . for
appropriate injunctive relief pending the final adjudication of the Board
with respect to such matter. Upon the filing of any such petition the dis-
trict court shall have jurisdiction to grant such injunctive relief . . . as it
deems just and proper, notwithstanding any other provision of law . . . .
In situations where such relief is appropriate the procedure specified
herein shall apply to charges with respect to section 158(b)(4)(D) of this
title.”
9806 SMALL v. OPERATIVE PLASTERERS’
requisite likelihood of success. The district court found that
the balance of the hardships weighed against Local 200, and
that the public interest would be served by granting the pre-
liminary injunction.
Accordingly, on September 30, 2008, the district court
enjoined Local 200 from prosecuting the two state court law-
suits pending final disposition by the Board of the Regional
Director’s petition. The injunction included paragraph 1(c),
which prohibited Local 200 from attempting “in any manner
or by any means” to “force or require” SDI to assign plaster-
ing work in the twelve Southern California counties to Local
200’s members. Following its timely filing of the notice of
appeal of the injunction, Local 200 moved for a modification
of the injunction to eliminate the broadly worded prohibition
in paragraph 1(c). The district court granted the motion by
striking paragraph 1(c) but, questioning its jurisdiction to do
so while the order was on appeal, it alternatively stayed
enforcement of the prohibition. The Regional Director cross-
appeals as to the modification order.
II. STANDARD OF REVIEW
We review the district court’s grant of an injunction pursu-
ant to section 10(l) for abuse of discretion. See Overstreet ex
rel. NLRB v. United Bhd. of Carpenters & Joiners of Am.,
Local 1506, 409 F.3d 1199, 1204 (9th Cir. 2005). 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 the legal standards applied by the district court. Id.
III. DISCUSSION
A. Order Granting Preliminary Injunctive Relief
1. The Appropriate Standard for Granting Injunctive
Relief Under Section 10(l)
[1] A district court may grant a section 10(l) injunction if
it is “just and proper.” Overstreet, 409 F.3d at 1206. It is well
SMALL v. OPERATIVE PLASTERERS’ 9807
established that, to determine whether an injunction is “just
and proper,” courts apply the “familiar set of four equitable
factors: the movant’s likelihood of success on the merits; the
possibility of irreparable injury to the moving party; the
extent to which the balance of hardships favors each party;
and whether the public interest will be advanced by granting
the preliminary relief.” Id. at 1207. The parties do not dispute
the applicability of these factors, but disagree on the strin-
gency with which they are to be applied. The Regional Direc-
tor argues that, under our decision in Miller, courts apply the
factors with deference to the Board. Under Miller’s deferen-
tial standard, a likelihood of success is established if the
Board produces “some evidence to support the unfair labor
practice charge, together with an arguable legal theory,” and
once a likelihood of success is established, district courts are
required to “presume irreparable injury.” Miller, 19 F.3d at
460. In contrast, Local 200 argues that its lawsuits are pro-
tected by the First Amendment’s Petition Clause and that,
therefore, our decision in Overstreet requires a “particularly
strong showing of likely success, and of harm.” Overstreet,
409 F.3d at 1208 n.13. We reject each party’s characterization
of the proper standard. Rather, the preliminary injunction
standard articulated by the Supreme Court in Winter v. Natu-
ral Resources Defense Council, Inc., ___ U.S. ___, 129 S. Ct.
365 (2008)—requiring neither deference nor particular
stringency—applies. Under Winter, a party seeking a prelimi-
nary injunction “must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips
in his favor, and that an injunction is in the public interest.”
Id. at 374.
[2] In Miller, the Board petitioned the district court for
injunctive relief under section 10(j) of the NLRA. Like sec-
tion 10(l), section 10(j) grants the district court jurisdiction to
enter injunctive relief if it is “just and proper.” See 29 U.S.C.
§§ 160(j), (l). Accordingly, the same equitable factors appli-
cable to requests for section 10(j) injunctions apply to
9808 SMALL v. OPERATIVE PLASTERERS’
requests for section 10(l) injunctions. See Overstreet, 409
F.3d at 1207. Unlike section 10(l) petitions, which are filed by
regional directors and are mandatory, 29 U.S.C. § 160(l), sec-
tion 10(j) petitions are filed by the Board and are discretion-
ary, id. § 160(j). Because Miller involved a section 10(j)
petition, we held that, “[w]hile the district court is not
required to defer to the Board in deciding whether interim
relief is ‘just and proper,’ it should evaluate the probabilities
of the complaining party prevailing in light of the fact that
ultimately, the Board’s determination on the merits will be
given considerable deference.” Miller, 19 F.3d at 460. We
therefore concluded that “the Board can make a threshold
showing of likelihood of success by producing some evidence
to support the unfair labor practice charge, together with an
arguable legal theory,” and, if a likelihood of success is estab-
lished, “presume irreparable injury.” Id.
In Winter, however, the Supreme Court rejected Miller’s
deferential standard for granting preliminary injunctions. Sub-
sequently, in McDermott ex rel. NLRB v. Ampersand Publish-
ing, LLC, we noted that “[o]ur now defunct precedents had
provided that when a plaintiff demonstrates a strong likeli-
hood of prevailing on the merits, a preliminary injunction may
be entered based only on a ‘possibility’ of irreparable harm.”
593 F.3d 950, 957 (9th Cir. 2010). We recognized that the
Winter Court rejected our more lenient standard and held
“that a party seeking a preliminary injunction ‘must establish
that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an
injunction is in the public interest.’ ” Id. (quoting Winter, 129
S. Ct. at 374). The Winter Court reasoned that the issuance of
a preliminary injunction based only on the possibility of irrep-
arable harm is inconsistent with the extraordinary nature of
the remedy. 129 S. Ct. at 375-76. We have since held that,
“[t]o the extent that our cases have suggested a lesser stan-
dard, they are no longer controlling, or even viable.” Am.
Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,
SMALL v. OPERATIVE PLASTERERS’ 9809
1052 (9th Cir. 2009) (footnote omitted); see also Stormans,
Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (“In Win-
ter, the Supreme Court definitively refuted our ‘possibility of
irreparable injury’ standard, stating ‘the Ninth Circuit’s “pos-
sibility” standard is too lenient.’ ” (quoting Winter, 129 S. Ct.
at 375)). Therefore, we reject the Miller deferential standard
urged by the Regional Director.3 See McDermott, 593 F.3d at
957.
Unlike Miller, Overstreet remains good law following the
Winter decision, McDermott, 593 F.3d at 958. Local 200
argues that Overstreet’s heightened standard applies because
enjoining the prosecution of its state court lawsuits constitutes
a prior restraint in violation of the First Amendment’s Petition
Clause. We disagree. In Overstreet, we cautioned that “ordi-
nary principles of deference to Board interpretation of the Act
do not apply” where “there is at least some risk that constitu-
tionally protected speech will be enjoined.” 409 F.3d at 1207,
1208 n.13. If such a risk exists, “only a particularly strong
showing of likely success, and of harm to the defendant as
well, could suffice” to justify issuing the requested injunction.
Id. at 1208 n.13.
[3] The First Amendment provides that “Congress shall
make no law . . . abridging . . . the right of the people . . . to
3
Even if Miller had remained good law after Winter, it is doubtful that
it would apply here because Miller involved a section 10(j) injunction. We
observed in Overstreet that “[i]t is unclear whether Miller’s incorporation
of a deference principle applies to a § 10(l) case.” 409 F.3d at 1207 n.12.
Unlike the decision to file a section 10(j) petition for injunctive relief—
which is the Board’s, 29 U.S.C. § 160(j)—the decision to file a section
10(l) petition is made by the Regional Director “on behalf of the board,”
29 U.S.C. § 160(l). Therefore, although “[o]ne might presume from the
Board’s decision to file a § 10(j) petition that if the facts are found to be
as projected in the petition, the Board will decide the case consistently
with the petition,” “the filing of a § 10(l) petition . . . suggests nothing
about how the Board will ultimately resolve the case.” Overstreet, 409
F.3d at 1208 n.12. Accordingly, we see no reason why Miller’s deference
principles would apply to a section 10(l) case.
9810 SMALL v. OPERATIVE PLASTERERS’
petition the Government for a redress of grievances.” U.S.
Const. amend I. The right to petition the government extends
to the courts and, thus, includes the right to file certain law-
suits. BE & K Constr. Co. v. NLRB, 536 U.S. 516, 525 (2002).
In the NLRA context, the Supreme Court has explained that
“[t]he filing and prosecution of a well-founded lawsuit may
not be enjoined as an unfair labor practice, even if it would
not have been commenced but for the plaintiff’s desire to
retaliate against the defendant for exercising rights protected
by the Act.” Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S.
731, 743 (1983). Therefore, a retaliatory motive alone does
not support the injunction of a state court lawsuit. However,
in Bill Johnson’s, the Court also recognized that a suit that
“has an objective that is illegal” may be enjoined without vio-
lating the First Amendment. Id. at 737 n.5.4
Local 200 and the Regional Director have competing views
as to the significance of the Bill Johnson’s decision. Local
200 argues that the Supreme Court discredited Bill Johnson’s
illegal objective exception in BE & K, where it held that the
Board may not impose liability on an employer for its unsuc-
cessful prosecution of a reasonably based lawsuit with a retal-
iatory motive. 536 U.S. 529-30. Local 200, however,
misconstrues that holding as adopting the test from the anti-
trust context used to determine whether a lawsuit is a mere
sham. In the antitrust context, only lawsuits that are both
objectively baseless and subjectively intended to abuse pro-
cess constitute “sham petitioning” and are therefore stripped
of First Amendment protection. See Prof. Real Estate Inves-
tors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-
61 (1993) (“PRE”). However, as we have observed, “BE &
K left open the question whether a similar two-part test would
apply in the labor relations context.” Sosa v. DIRECTV, Inc.,
437 F.3d 923, 938 (9th Cir. 2006). Indeed, Justice Scalia’s
4
The Bill Johnson’s Court also held that lawsuits that are preempted by
federal law are not protected by the First Amendment’s Petition Clause.
That aspect of the Bill Johnson’s decision is not at issue in this appeal.
SMALL v. OPERATIVE PLASTERERS’ 9811
concurrence in BE & K acknowledges that the BE & K major-
ity did not actually adopt the antitrust standard. 536 U.S. at
537 (Scalia, J., concurring). Therefore, Bill Johnson’s’s hold-
ing that a lawsuit that has an illegal objective constitutionally
may be enjoined was left undisturbed by BE & K. See Sosa,
437 F.3d at 938; Can-Am Plumbing, Inc. v. NLRB, 321 F.3d
145, 151 (D.C. Cir. 2003) (“BE & K did not affect the foot-
note 5 exemption in Bill Johnson’s.”).
[4] The critical question is thus whether Local 200’s state
actions have an illegal objective. The Bill Johnson’s decision
does not provide guidance on the difference between a lawsuit
with a permissible retaliatory motive and one with an illegal
objective, which constitutionally may be enjoined. Since Bill
Johnson’s was decided, however, we have held that a lawsuit
which, if successful, would completely undermine a section
10(k) work assignment does have an illegal objective. Int’l
Longshoremen’s & Warehousemen’s Union, Local 32 v. Pac.
Mar. Ass’n, 773 F.2d 1012, 1015 (9th Cir. 1985). In Interna-
tional Longshoremen’s, an arbitrator awarded Local 32 mem-
bers damages for work that was completed by employees
represented by a different union, and that the Board already
had awarded to the other union pursuant to its section 10(k)
authority. Id. at 1014. We upheld “[t]he Board’s finding of an
improper desire to circumvent the section 10(k) determina-
tion” under the no-longer applicable “arbitrary and capri-
cious” standard because “[t]he union’s attempt to obtain
payment for work to which it is not entitled would, if success-
ful, completely undermine the section 10(k) work assign-
ment.” Id. at 1015; see also Iron Workers Local 433, 309
N.L.R.B. 273, 274 (1992) (“[A]llowing the losing party in a
10(k) dispute to pursue payments for work that the Board
awarded to employees other than those involved in the griev-
ance necessarily subverts the Board’s 10(k) award.”), aff’d,
46 F.3d 1143 (9th Cir. 1995). The other circuits to have
decided this issue agree with our analysis. See Local 30,
United Slate, Tile & Composition Roofers v. NLRB, 1 F.3d
1419, 1426 (3d Cir. 1993) (“[T]he pursuit of a . . . breach of
9812 SMALL v. OPERATIVE PLASTERERS’
contract suit that directly conflicts with a section 10(k) deter-
mination has an illegal objective and is enjoinable as an unfair
labor practice under section 8(b)(4)(ii)(D).”); Chauffeurs,
Local 776 v. NLRB, 973 F.2d 230, 235-37 (3d Cir. 1992) (not-
ing that a suit “prosecuted to circumvent the primary jurisdic-
tion of the Board in deciding representational issues” has an
illegal objective under Bill Johnson’s); Int’l Longshoremen’s
& Warehousemen’s Union v. NLRB, 884 F.2d 1407, 1414
(D.C. Cir. 1989) (“We think the Board reasonably concluded
that [petitioner’s grievance has an illegal objective], because,
whatever the union’s motivation and no matter how persua-
sive its contractual case, a union cannot force an employer to
choose between a Board section 10(k) award and a squarely
contrary contract claim.”); see also Int’l Union, Local 1519 v.
Rockwell Int’l Corp., 619 F.2d 580, 584 (6th Cir. 1980) (hold-
ing that “the Board’s § 10(k) determination has priority over
a conflicting arbitrator’s award”).
[5] Here, because any favorable resolution of the state law-
suits would directly conflict with the Board’s section 10(k)
determinations, under Local 32 and Bill Johnson’s, Local
200’s suits have an illegal objective. In the Tortious Interfer-
ence Lawsuit, Local 200 alleges that the Carpenters, through
an illegal kickback scheme, induced SDI to “withdraw work
from Local 200’s signatory contractors and instead to assign
that work to [the Carpenters-represented] employees.” The
complaint seeks damages for work that Local 200’s members
lost as a result of the scheme, and an injunction against further
kickbacks. The Board, however, in its second section 10(k)
determination, SDI II, found that there was no evidence of
collusion between SDI and the Carpenters and explicitly
assigned to the Carpenters disputed work for all current and
future public works projects performed by SDI in twelve Cali-
fornia counties. As in Local 32, the Tortious Interference
Lawsuit seeks damages for work the Board awarded to the
prevailing union. Moreover, the central allegation of the
lawsuit—that the Carpenters unlawfully induced SDI to reas-
sign work to the Carpenters—conflicts directly with the
SMALL v. OPERATIVE PLASTERERS’ 9813
Board’s section 10(k) finding that SDI and the Carpenters did
not collude to reassign the work.
[6] The Wage and Hour Lawsuit, if successful, also would
directly undercut the Board’s section 10(k) determination and
therefore also has an illegal objective. The current operative
complaint in the Wage and Hour Lawsuit, which was filed
after the Board’s section 10(k) decisions, alleges that Local
200 members enrolled in state-approved apprenticeship pro-
grams and lost wages due to SDI’s failure to employ them on
public works projects between October 2000 and November
2006. The complaint seeks recovery of wages that would have
been paid to the Local 200 members had SDI hired them. The
Board, however, in its first section 10(k) determination, SDI
I, assigned work on the Fine Arts Project to the Carpenters
and that work was completed, at least in part, during the
period at issue in Local 200’s complaint. Therefore, the Wage
and Hour Lawsuit has an illegal objective because it seeks
damages for work the Board awarded to the Carpenters in its
section 10(k) decision.
[7] Because Local 200’s state court lawsuits have an illegal
objective, they are not protected by the Petition Clause of the
First Amendment. Therefore, Overstreet’s heightened stan-
dard for granting injunctive relief does not apply; rather, we
must turn to the factors articulated in Winter to evaluate the
propriety of injunctive relief.
2. Application of the Equitable Factors
[8] Preliminary injunctive relief is proper if the plaintiff
establishes that “he is likely to succeed on the merits, that he
is likely to suffer irreparable harm in the absence of prelimi-
nary relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest.” Winter, 129 S. Ct.
at 374.
9814 SMALL v. OPERATIVE PLASTERERS’
i. Likelihood of Success
We begin by examining the Regional Director’s likelihood
of success—that is, whether the Board will adopt the ALJ’s
conclusions of law. The district court concluded that the
Regional Director was likely to succeed on the merits. We
agree. The district court reasoned that the state court lawsuits
have an illegal objective because “they seek damages and/or
restitution from both SDI and Carpenters for failing to hire
employees represented by [Local 200]” and that “the work at
issue was awarded by the [Board], pursuant to a § 10(k) pro-
ceeding, to members represented by the Carpenters.”
[9] We agree that it is likely that the Board will conclude
that Local 200’s lawsuits violate section 8(b)(4)(ii)(D) of the
NLRA as an “unfair labor practice” that threatens or coerces
SDI into assigning work to Local 200 members. Because any
favorable resolution of the state court lawsuits would directly
conflict with the Board’s section 10(k) determinations, Local
200 “could not obtain the relief it sought regardless of the evi-
dence it produced” in the state court lawsuits. Local 776, 973
F.2d at 236. Thus, the Board is likely to conclude that the
object of both state court lawsuits is to coerce SDI to pay
Local 200 for work or to assign Local 200 members work that
the Board already assigned to the Carpenters, in violation of
29 U.S.C. § 158(b)(4)(ii)(D).
ii. Irreparable Harm
Unlike under the Miller standard, we do not presume irrep-
arable harm; rather, applying the Winter standard, we ask
whether the failure to issue an injunction “likely” would cause
irreparable harm. See McDermott, 593 F.3d at 957. Although
the district court did not have the benefit of the Winter deci-
sion, we conclude that, because its analysis “implicitly sup-
ports a likelihood of irreparable harm . . . in the absence of
injunctive relief,” it did not abuse its discretion in issuing the
injunction. See Johnson v. Couturier, 572 F.3d 1067, 1084-85
SMALL v. OPERATIVE PLASTERERS’ 9815
(9th Cir. 2009) (“Although the validity of the district court’s
approach is questionable post-Winters [sic], . . . the district
court did not abuse its discretion . . . [because its] analysis
implicitly supports a likelihood of irreparable harm to Plain-
tiffs in the absence of injunctive relief.”).
[10] We have held that “permit[ing an] allegedly unfair
labor practice to reach fruition and thereby render meaning-
less the Board’s remedial authority” is irreparable harm. Mil-
ler, 19 F.3d at 460. Because the likely purpose of Local 200’s
state court lawsuits is to circumvent the Board’s section 10(k)
work assignments, in the absence of an injunction, SDI would
be under pressure to reassign the work to Local 200, given the
hardship it is undergoing in defending the lawsuits and the
legal fees it is incurring. Indeed, these tactics have proved
effective in the past. When Local 200 continued to pursue liti-
gation against SDI after the Board’s first section 10(k) deter-
mination, SDI wrote to the Carpenters explaining that SDI
“may have no choice but to assign plastering work” to Local
200 members. The Carpenters threatened to “immediately
strike” SDI if it did so. Therefore, we agree with the neces-
sary implication of the district court’s order that the Regional
Director has established a likelihood of irreparable harm.
iii. Balance of Hardships and the Public Interest
[11] The district court concluded that the balance of hard-
ships and the public interest weigh in favor of granting the
injunction. We agree. The only hardship to Local 200 is the
delay in prosecuting lawsuits the Board likely will conclude
are unlawful. This interest is weighed against the hardships to
SDI and the threat of harm to the public. Here the hardship
to SDI—the cost of defending the lawsuits even in the face of
favorable Board determinations—implicates the public inter-
est. If these costs force SDI to reassign the Carpenters’ work
to Local 200, it is likely to engender a disruption of industrial
peace, causing “obstructions to the free flow of commerce,”
Miller, 19 F.3d at 455 n.3, and “threaten[ing a] danger of
9816 SMALL v. OPERATIVE PLASTERERS’
harm to the public,” Retail Clerks Union, Local 137 v. Food
Employers Council, Inc., 351 F.2d 525, 531 (9th Cir. 1965)
(“Section 10(l) reflects a congressional determination that the
unfair labor practices enumerated therein are so disruptive of
labor-management relations and threaten such danger of harm
to the public . . . .”).
B. Modification of the Preliminary Injunction
[12] We review de novo whether the district court had sub-
ject matter jurisdiction to modify the injunction once an
appeal was taken. Burlington N. Santa Fe Ry. Co. v. Int’l Bhd.
of Teamsters Local 174, 203 F.3d 703, 707 (9th Cir. 2000).
Because “[t]he filing of a notice of appeal . . . confers juris-
diction on the court of appeals and divests the district court
of its control over those aspects of the case involved in the
appeal,” we conclude that the district court lacked jurisdiction
to modify the injunction. Griggs v. Provident Consumer Disc.
Co., 459 U.S. 56, 58 (1982) (per curiam).
[13] Though the court is allowed to “modify . . . an injunc-
tion on . . . terms that secure the opposing party’s rights,” Fed.
R. Civ. P. 62(c), the court only “retains jurisdiction during the
pendency of an appeal to act to preserve the status quo,” Nat-
ural Res. Def. Council, Inc. v. Sw. Marine, Inc., 242 F.3d
1163, 1166 (9th Cir. 2001). The district court deleted para-
graph 1(c), which proscribed Local 200 from “in any manner
or by any means, threatening, coercing, or restraining [SDI],
where an object thereof is to force or require [SDI] to assign
plastering work to Local 200.” This modification altered the
status quo by removing the prohibition on Local 200’s use of
other coercive measures designed to undermine the Board’s
section 10(k) determination pending final adjudication. We
therefore vacate the modification order deleting paragraph
1(c) and reinstate the injunction as originally granted.
IV. CONCLUSION
Because we conclude that the district court did not abuse its
discretion in granting injunctive relief, we affirm the order
SMALL v. OPERATIVE PLASTERERS’ 9817
appealed in Case No. 08-56668. However, because the district
court lacked subject matter jurisdiction to modify the injunc-
tion once the appeal was taken, we vacate the order appealed
in Case No. 08-56942, reinstating the full scope of the injunc-
tion as originally granted.
AFFIRMED in part; VACATED in part.