Miller v. California Pacific Medical Center

To return nurses who worked at Children’s Hospital of San Francisco to the collective bargaining status they had before Children’s and Pacific Presbyterian Medical Center were merged into a single health care provider, California Pacific Medical Center (CPMC), the Regional Director of the National Labor Relations Board sought a preliminary injunction under § 10(j) of the National Labor Relations Act, 29 U.S.C. § 160 (j), pending disposition of an unfair labor practice charge by the NLRB. Section 10(j) permits the Board to petition any United States district court for an appropriate restraining order and confers jurisdiction on the court to grant such temporary relief “as it deems just and proper.”

Applying our circuit’s two-part standard for § 10(j) relief — determining first whether the factual allegations supporting the Board’s petition are not insubstantial and frivolous, such that there is “reasonable cause” to believe the employer has violated the NLRA, and second, whether the requested relief is necessary to prevent a frustration of the remedial purposes of the Act and is thus “just and proper,” Scott ex rel. NLRB v. El Farra Enters., Inc., 863 F.2d 670 , 673-74 (9th…

with whom Circuit Judges BROWNING, TANG, and TROTT join, concurring in part and dissenting in part;

My disagreement is not so much in what the majority opinion says as in what it de-dines to say. The majority announces a newly articulated analysis for district courts to apply in NLRA preliminary injunction cases, but then declines to apply that analysis to the case before it.

Article III limits our jurisdiction to cases and controversies. When we assume jurisdiction of a moot case because it is capable of repetition yet likely to evade review, we routinely decide the merits. See, e.g., Sacramento City Unified Sch. Dist. v. Rachel H, 14 F.3d 1398 (9th Cir.1994); see also Burlington Northern R. Co. v. B.M.W.E., 481 U.S. 429, 431 , 107 S.Ct. 1841, 1843 , 95 L.Ed.2d 381 (1987); Johansen ex rel. NLRB v. San Diego County Dist. Council of Carpenters, 745 F.2d 1289 (9th Cir.1984) (per curiam). If, as the majority announces, this ease is worthy of consideration because the dispute may recur between the parties, then this court has an obligation to explain how that dispute should be decided, and not merely render advisory standards for use by district courts in fixture cases.

Because I…