Cornele Overstreet v. Gunderson Rail Services

MEMORANDUM *

Gunderson Rail Services (“GRS”) appeals the district court’s grant of a preliminary injunction pursuant to Section 10(j), 29 U.S.C. § 160 (j), of the National Labor Relations Act, requiring GRS to reopen its Tucson repair facility, reinstate employees, and bargain in good faith with a union on behalf of the employees. We have jurisdiction over this appeal under 28 U.S.C. § § 1291, 1292(a)(1). We review the grant of a preliminary injunction for an abuse of discretion. McDermott v. Ampersand Publ’g, LLC, 593 F.3d 950, 957 (9th Cir.2010).

“A plaintiff 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.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 , 129 S.Ct. 365 , 172 L.Ed.2d 249 (2008); see also Frankl v. HTH Corp., 650 F.3d 1334, 1355 (9th Cir.2011) (applying the preliminary injunction standard in connection *381 with a petition for relief under Section 10(j)). In considering the balance of equities, a district court has a duty to…

with whom BEA, Circuit Judge, joins, concurring:

I concur in the memorandum disposition, but write separately to identify what I find the most compelling reason to vacate the preliminary injunction.

“On a § 10(j) petition, 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 and that this Court would grant a petition enforcing thát order, if such enforcement were sought.” Frankl v. HTH Corp., 650 F.3d 1334, 1355 (9th Cir.2011) (citation omitted).

The district court concluded that the Director was likely to succeed in establishing that GRS’s economic justification for closing the Tucson facility was. a pretext and that the closure had in fact been motivated by anti-union animus. This case arrived at the district court after an administrative law judge (“ALJ”) held a hearing on the merits of the Director’s claims, but before the ALJ made findings of fact or conclusions of law. Thus, the district judge made his findings on the basis of the transcript of the administrative hearing. We now have the benefit of the'ALJ’s findings, and we may take judicial notice…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT OCT 16 2014

MOLLY C. DWYER, CLERK

CORNELE A. OVERSTREET, No. 14-15713 U.S. COURT OF APPEALS

Regional Director of the Twenty-Eighth Region of the National Labor Relations D.C. No. 4:14-cv-01323-FRZ Board on behalf of the National Labor Relations Board,

Petitioner - Appellee,

v. MEMORANDUM*

GUNDERSON RAIL SERVICES, LLC,

doing business as Greenbrier Rail Services,

Respondent - Appellant.

Appeal from the United States District Court for the District of Arizona Frank R. Zapata, Senior District Judge, Presiding

Argued and Submitted September 8, 2014 San Francisco, California

Before: BEA, IKUTA, and HURWITZ, Circuit Judges.

Gunderson Rail Services (“GRS”) appeals the district court’s grant of a

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

-1- preliminary injunction pursuant to Section 10(j), 29 U.S.C. § 160(j), of the

National Labor Relations Act, requiring GRS to reopen its Tucson…