National Labor Relations Act (NLRA); Alleged violation of NLRA §§ 8(a)(1) & (a)(5) by refusing to bargain with a recognized union representative; Preliminary injunction ordering continued bargaining under NLRA § 10(j); Starbucks Corp v McKinney; Factors for issuance of a preliminary injunction; “Likelihood of success on the merits”of the unfair labor practice (ULP) claim; “Irreparable harm”; Hooks ex rel NLRB v Nexstar Broad, Inc (9th Cir)

[This appeal was from the WD-MI.] The court reversed the district court and vacated its order granting petitioner-NLRB Regional Director a preliminary injunction requiring respondent-Trinity Health to bargain with the union, holding that while she was likely to succeed on the merits, she failed to show that irreparable harm would result without an injunction. Trinity withdrew recognition of the union as representing hospital employees during a contentious labor dispute. In administrative proceedings, the ALJ ruled that Trinity had violated the NLRA by refusing to bargain with a recognized union representative. The Director successfully petitioned the district court for a preliminary injunction ordering Trinity to recognize the union and resume negotiations. Trinity appealed and moved to dissolve the injunction. Noting that what was at issue was “the proper application of” NLRA § 10(j), pursuant to the Supreme Court’s decision in Starbucks, the court applied the traditional four-factor test for whether a preliminary injunction should issue. It first considered whether the Director was “likely to succeed on the merits” of the ULP claim, referring to both victory before the Board and whether the district court would grant a petition to enforce the Board’s order. The court concluded that she was likely to prevail, finding that she presented “meaningful evidence to support” the argument that the disaffection petition “failed as a factual matter to prove the union’s loss of majority support.” But the court held that she did not establish irreparable harm absent injunctive relief. This factor “‘is the core of the preliminary injunction[.]’” In the context of “§ 10(j) injunctions, irreparable harm means ‘harm that the Board, entrusted with its own enforcement powers, would otherwise be powerless to fix.’” The court found that, pursuant to Hooks, “Trinity’s alleged refusal to bargain, standing alone, does not mean that ‘irreparable harm can be inferred,’ . . . without the Director offering ‘independent factual support’ of that harm[.]” For the Director to show “irreparable harm, she needed to (1) specifically identify the injury threatened by the alleged [ULP], (2) establish that the injury is likely to result absent an injunction, and (3) explain why the Board’s § 10(c) remedial powers could not fix the injury after the fact. And she must do so through more than mere speculation.” The court determined that she failed to complete “each leg of that legal triathlon,” and thus, did not “make a ‘clear showing’ of ‘likely . . . irreparable harm.’”