M. McKinney v. Creative Vision Resources, LLC , 783 F.3d 293 ( 2015 )

Case: 14-30839 Document: 00513003521 Page: 1 Date Filed: 04/13/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 13, 2015
No. 14-30839
Lyle W. Cayce
Clerk
M. KATHLEEN MCKINNEY, Regional Director of Region Fifteen of the
National Labor Relations Board, for and on behalf of the National Labor
Relations Board,
Plaintiff - Appellee
v.
CREATIVE VISION RESOURCES, L.L.C.,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal presents the question of whether a district court abuses its
discretion by granting injunctive relief under § 10(j) of the National Labor
Relations Act (“NLRA”), 29 U.S.C. § 160(j), absent specific findings that the
enjoined conduct was egregious or otherwise exceptional. M. Kathleen
McKinney, the National Labor Relations Board’s regional director, sought and
obtained a temporary injunction requiring Creative Vision Resources, L.L.C.,
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to negotiate and bargain in good faith with a labor union. 1 Creative Vision
appeals the district court’s grant of injunctive relief, arguing that such relief
was not equitably necessary under the circumstances of this case.
We conclude that the district court abused its discretion because it
ordered injunctive relief supported only by general findings of harm that do
not evince exceptional or egregious conduct or harms in the context of the
NLRA. Nor did the district court address adequately the effect of the excessive
passage of time between the onset of the alleged wrongful activities and the
issuance of the injunction. The district court’s order enjoined conduct in 2014
in an attempt to preserve a status quo as it existed in 2011. Because we
conclude that the district court’s findings are insufficient, we VACATE the
district court’s order issuing injunctive relief and REMAND the case.
I.
The relevant facts in this case are materially undisputed and relate to a
work force of “hoppers,” persons who work on the back end of garbage trucks.
The hoppers here are supplied by appellant Creative Vision to a waste disposal
company called Richard’s Disposal, Inc., in New Orleans, Louisiana.
In August 2005, Richard’s entered into a contract with a company called
Berry to provide hoppers for its garbage trucks. 2 Local 100, Service Employees
International Union (“SEIU”), a labor union, represented Berry’s hoppers in
their collective bargaining agreements between 2007 and 2009. Local 100
1 Although McKinney filed the petition and is technically listed as the Plaintiff-
Appellee in this case, she took action on behalf of the National Labor Relations Board.
Accordingly, we treat the National Labor Relations Board as the Plaintiff-Appellee and refer
to it as “the NLRB” or “the Board” herein.
2 “Berry” actually refers to a number of different business entities. The district court
treated them as a single entity, however, and we do the same.
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disaffiliated from SEIU in October 2009, but it continued to represent the
hoppers as Local 100, United Labor Unions. 3
In 2010, Alvin Richard III, the son of the owner of Richard’s and an
executive of Richard’s, formed Creative Vision, apparently to provide hoppers
to Richard’s. Creative Vision distributed hiring applications to the Berry
hoppers who worked for Richard’s in May 2011, and on June 1, 2011, Richard’s
informed Berry that it no longer needed Berry’s services. Beginning on June
2, 2011, Creative Vision supplied the hoppers for Richard’s garbage trucks.
Creative Vision employed the same hoppers as Berry—at least forty-three of
the forty-four hoppers had been employed by Berry and had been represented
by Local 100.
After Creative Vision began servicing Richard’s trucks, Local 100
contacted Creative Vision, asking that it recognize and bargain with Local 100
as the exclusive representative of Creative Vision’s hoppers. According to
Local 100, Creative Vision is a successor to Berry, and, as such, Creative Vision
is required to bargain with the union. Local 100 claims that Creative Vision
refused to recognize or bargain with it, and it filed an unfair labor practice
charge against Creative Vision on June 17, 2011, alleging violations of the
NLRA. The NLRB investigated and issued an administrative complaint
against Creative Vision on March 30, 2012. The parties then prepared for a
trial on the allegations before an administrative law judge (“ALJ”). 4
On July 25, 2012, however, the NLRB also filed a petition for injunctive
relief in the federal district court. In the petition, the NLRB sought to enjoin
Creative Vision to recognize and bargain in good faith with Local 100 based on
3From the hoppers’ perspective, their relationship with the union was largely
unchanged as a result of the disaffiliation.
4 During this time, the NLRB points out that the parties also engaged in settlement
negotiations.
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the allegations before the ALJ. The petition lingered in the federal district
court for almost two years.
While the petition was pending in the district court, a number of events
occurred in the administrative proceedings before the NLRB. The ALJ issued
a decision siding with the NLRB on some of the claims against Creative Vision
on January 7, 2013. The district court placed the ALJ’s decision into the record
on January 24, 2013. Creative Vision and the NLRB filed exceptions to the
ALJ’s ruling, and, as far as the record before us shows, that ruling is currently
pending before the NLRB for decision.
After the ALJ issued his ruling, the NLRB filed a motion in the district
court on February 19, 2013, seeking an expedited ruling on the petition for the
§ 10(j) injunction. At the same time, however, Creative Vision moved to
dismiss the petition, arguing that injunctive relief was now a moot point in the
light of the protracted delay in pursuing injunctive relief. On September 9,
2013, the district court denied both the motion to expedite and the motion to
dismiss, leaving the petition for injunctive relief pending before the district
court. After these rulings, the district court took no further action until July
8, 2014, when it granted the petition and entered an injunction, enjoining
Creative Vision to recognize and bargain with the union. It concluded that an
injunction was needed to preserve the status quo ante in anticipation of the
NLRB’s ultimate decision on the merits of the case. Creative Vision filed this
timely appeal, challenging the district court’s order granting the injunction
under § 10(j) of the NLRA.
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II.
A.
1.
As this case involves a claim for injunctive relief under § 10(j), we turn
first to the relevant statutory text for the standards of review. Section 10(j)
provides as follows:
The 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 United States district court,
within any district wherein the unfair labor practice in question is
alleged to have occurred or wherein such person resides or
transacts business, for appropriate temporary relief or restraining
order. Upon the filing of any such petition the court shall cause
notice thereof to be served upon such person, and thereupon 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). We recognize that “[t]he words of this section are
unquestionably vague and provide little help to the [d]istrict [c]ourt.” Boire v.
Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 479 F.2d
778, 787 (5th Cir. 1973) (“Teamsters”). Nonetheless, we have observed as an
initial insight “that § 10(j) does not authorize the Regional Director to seek an
injunction in every unfair labor practice case.” Id.
The proper framework for reviewing a § 10(j) petition is a subject of some
differences among the circuits. This Circuit, along with a number of other
circuits, has adopted a two-part test. Specifically, this Court addresses: “(1)
whether the Board, through its Regional Director, has reasonable cause to
believe that unfair labor practices have occurred, and (2) whether injunctive
relief is equitably necessary, or, in the words of the statute, ‘just and proper.’”
Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185, 1188–89 (5th Cir. 1975)
(“Pilot Freight”). Other circuits apply a more traditional, four-part test for
injunctive relief that requires the NLRB to show, among other things, a
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sufficient likelihood of irreparable harm. See Chester ex rel. NLRB v. Grane
Healthcare Co., 666 F.3d 87, 93–94 (3d Cir. 2011) (identifying various courts
that have rejected the two-part test).
At the outset, Creative Vision argues that we should overrule our two-
part test based on the Supreme Court’s decision in Winter v. Natural Resources
Defense Council, 555 U.S. 7 (2008). 5 In Winter, the Supreme Court reversed
the Ninth Circuit’s judgment affirming the district court’s grant of injunctive
relief based on possible future harm. Id. at 33. Specifically, the Court held
that
[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.
Id. at 20. The Court rejected the Ninth Circuit’s standard, explaining that
“[i]ssuing a preliminary injunction based only on a possibility of irreparable
harm is inconsistent with our characterization of injunctive relief as an
extraordinary remedy that may only be awarded upon a clear showing that the
plaintiff is entitled to such relief.” Id. at 22.
Because Winter dealt with injunctive relief in a significantly different
context from § 10(j) relief, it does not perfunctorily control here, especially
given precedents of this Court that bind us. Specifically, we have reaffirmed
our two-part test in the years following Winter, but we have also underscored
5The injunctive relief in Winter arose in a different factual context. In Winter, an
environmental protection organization sought a preliminary injunction against Naval testing
in the Pacific, arguing that the testing would negatively impact various marine mammals.
555 U.S. at 16–18. Obviously, the environmental organization was not invoking the specific
injunctive relief authorized in § 10(j), which applies only in the context of labor violations.
Thus, Winter does not mandate that we apply its test instead of our longstanding two-part
test that specifically applies to § 10(j) injunctions.
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that “the principles of equity inform an evaluation for § 10(j) relief.” Overstreet
v. El Paso Disposal, L.P., 625 F.3d 844, 851 (5th Cir. 2010). The Third Circuit
applies the same two-part test, reasoning that the four equitable prongs in
Winter are incorporated into the two-prong test. Chester, 666 F.3d at 98. The
Chester court observed that the first prong of the two-prong test evaluates the
likelihood of success on the merits, and the remaining three factors inform
whether such relief is “just and proper.” Id. at 99. Similarly, courts that apply
the four-part analysis in the § 10(j) context necessarily “have made
modifications . . . to accommodate the purposes and goals of the NLRA.” Id. at
97.
Given these explanations of the two-prong test, with which we agree, we
are persuaded that our two-prong review of § 10(j) petitions for injunctive relief
is not inconsistent with Supreme Court precedent, and consequently, we do not
overrule that standard. We are mindful, however, of the Supreme Court’s
directive in Winter that “[a] preliminary injunction is an extraordinary remedy
never awarded as of right.” 555 U.S. at 24 (emphasis added). Thus, we
emphasize that the NLRB must establish both prongs of our two-part test with
reasonable clarity in order to obtain injunctive relief.
2.
Only one part of the two-part test is at issue in this appeal; Creative
Vision concedes that the NLRB has satisfied the first prong of the analysis.
Thus, this appeal turns on the second prong: whether the NLRB has shown
that injunctive relief was just and proper based on the balance of the equities.
See Overstreet, 625 F.3d at 851. We review the district court’s decision as to
this prong for abuse of discretion. Id. at 850.
B.
The abuse of discretion standard is often an elusive one, but a district
court typically abuses its discretion if it: “(1) relies on clearly erroneous factual
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findings; (2) relies on erroneous conclusions of law; or (3) misapplies the law to
the facts.” Love v. Tyson Foods, Inc., 677 F.3d 258, 262 (5th Cir. 2012) (internal
quotation marks omitted). Critically, “[w]here a district court rests its legal
analysis on an erroneous understanding of governing law, it has abused its
discretion.” Langbecker v. Elec. Data Sys. Corp., 476 F.3d 299, 306 (5th Cir.
2007). Put another way, “[a] district court abuses is discretion when it
misconstrues its proper role, ignores or misunderstands the relevant evidence,
and bases its decision upon considerations having little factual support.”
Arlook ex rel. NLRB v. S. Lichtenberg & Co., 952 F.2d 367, 374 (11th Cir. 1992).
III.
Turning to this appeal, we hold that the district court abused its
discretion in granting injunctive relief. The second prong for injunctive relief—
that the proposed relief is “just and proper”—does not apply to the NLRB’s
petition for relief, certainly not at this time point in the litigation. Specifically,
the district court rested its decision on the broad and general assumption that
injunctive relief may issue whenever the unfair labor practice at issue causes
harm, without considering the specific impact on the union or its employees in
this case. Upon reviewing the relevant law, we conclude that the district court
failed to make sufficient factual findings suggesting that Creative Vision’s
conduct was egregious or otherwise exceptional so as to warrant a § 10(j)
injunction, particularly when the injunction issued several years after Creative
Vision commenced the allegedly wrongful conduct.
A.
Although a § 10(j) injunction involves discretion, its purpose is to
“prevent erosion of the status of the parties pending [the NLRB’s] final
decision.” Pilot Freight, 515 F.2d at 1188 (emphasis added). Our use of the
term “erosion” necessarily implies that injunctive relief seeks to preserve the
status quo ante when that status quo is capable of being preserved. Put
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another way, injunctive relief serves its purpose, and should issue, when: (1)
the employer’s alleged violations of the NLRA and the harm to the employees
or to the union are concrete and egregious, or otherwise exceptional; and (2)
those harms, as a practical matter, have not yet taken their adverse toll, such
that injunctive relief could meaningfully preserve the status quo among the
employer, the union, and the employees, that existed before the wrongful acts
occurred. 6
Our caselaw adopts both of these principles. As to the first, we have been
clear that a § 10(j) injunction is an “extraordinary remedy” to be employed only
in the event of “egregious unfair labor practices.” Id. at 1192. To constitute
“egregiousness” for purposes of § 10(j), a labor practice must lead to exceptional
injury, as measured against other unfair labor practices. The NLRA prohibits
specific unfair conduct between adversaries, and most, if not all, conduct that
is prohibited by the NLRA has the potential to, and often does, cause serious
harm to competing unions, to the work force, and/or to employers. Yet, we have
recognized that the NLRB’s administrative procedures should generally
control and that “measures to short-circuit the NLRB’s processes should be
sparingly employed.” Id. To confine § 10(j) injunctive relief to its proper role,
the NLRB must show, and the district court must find, that the unfair labor
6 We recognize an ambiguity in the existing precedents as to whether we measure the
injury by considering harms to the union, employees, or both. In Pilot Freight, this Court
tended to balance the harm by considering the impact solely on the employer on one side and
the union on the other. See 515 F.2d at 1194. In Overstreet, we looked in part to the “cause
of the anti-Union sentiment among the workers.” 625 F.3d at 856. Other courts look more
directly to the effects of unfair labor practices on both the union and the workforce
collectively. See, e.g., Maram v. Universidad Interamericana de P.R., Inc., 722 F.2d 953, 959
(1st Cir. 1983) (finding irreparable harm because “this was a discharge of the entire workforce
in the face of unionization”). We recognize that there is often a necessary interplay between
the workforce and the union when assessing harms as a result of unfair labor practices. We
need not establish an exact standard in this case, though, because the district court’s
findings, and indeed the record, are inadequate under any framework.
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practice, in the context of that particular case, has caused identifiable and
substantial harms that are unlikely to be remedied effectively by a final
administrative order from the NLRB.
The second principle, considered in the conjunctive with the first
principle above, establishes that § 10(j) relief is only appropriate when “any
final order of the NLRB would be meaningless and the remedial purposes of
the Act will be frustrated without an injunction to preserve the status quo.”
Overstreet, 625 F.3d at 851. Thus, injunctive relief should issue when harms
are ongoing, yet incomplete and likely further to harm the union or its
supporters in the workforce. For example, if a harm is of a routine character
in the NLRA context, the parties usually can redress such wrongs under the
NLRB administrative processes. See Muffley ex rel. NLRB v. Spartan Mining
Co., 570 F.3d 534, 545–46 (4th Cir. 2009) (approving of the district court’s
decision narrowly to tailor its injunctive relief to preserve “a critical mass of
bargaining unit employees . . . such that, if the Board approves the ALJ’s
proposed order, the union will be able to reassert its role as representative of
those employees”).
In sum, a district court reviewing a petition for § 10(j) injunctive relief
should provide only relief that is necessary and must issue specific findings of
fact that suggest harm requiring § 10(j) injunctive relief. See Overstreet, 625
F.3d at 851 (recognizing that equitable principles such as irreparable harm
inform this Court’s existing § 10(j) analysis). In the light of this background,
we turn to the district court’s findings in this case.
B.
We thoroughly have reviewed the relevant record, the district court’s
order, and the reasons supporting its injunctive order. This review indicates
that the district court has not pointed to the type of conduct or current harms
that warrant § 10(j) relief. Instead, the district court relied in large part on
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generalizations to support its conclusion that the NLRB was entitled to an
injunction. The district court’s order fails to address adequately relevant and
key facts in the case before it, including the three-year delay between the
union’s filing of its complaint and the issuance of the injunction.
Cases from this Circuit and other circuits provide an appropriate
contrast. For example, in Teamsters, this Court affirmed a § 10(j) order
enjoining a union from striking. 479 F.2d at 782. We concluded that such
relief was appropriate because the company would be compelled either to resist
the strike, which “quite clearly would result in severe financial loss to the
Company as well as a significant decline in important public services,” or
acquiesce to it, allowing the union “to get a toe-hold on the Florida operation
that would prove most difficult to overcome.” Id. at 788. Thus, in Teamsters
substantial, identifiable harms would occur in the absence of an injunction
regardless of the action the company chose.
Similarly, the Eleventh Circuit concluded that injunctive relief should
issue in a case of egregious employer misconduct in which the employer
“engaged in a panoply of unfair labor practices” by firing employees as a result
of a labor dispute, enforcing new workplace rules, and engaging in other
threatening activity to dissuade union participation. Arlook, 952 F.2d at 369–
71. The Arlook court emphasized that the union recently had been certified
and, more importantly, there was evidence of a pervasive fear among the work
force that they would be retaliated against for providing any support for the
union. Id. at 373. Thus, the court noted that “[t]he Company has not merely
fired a few employees, or altered one or two minor rules. Rather, the
allegations span the gamut of labor violations.” Id. at 374 (emphasis added).
Because the wrongs were so egregious, “[w]ithout an injunction, the Board’s
ability to foster peaceful labor negotiations through normal procedures would
be imperiled.” Id. Other circuits have similarly required § 10(j) relief when an
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unfair labor practice tends to decimate an entire work force. See Hirsch v.
Dorsey Trailers, Inc., 147 F.3d 243, 247–48 (3d Cir. 1998) (remanding so that
the district court could enjoin a company from selling a manufacturing plant
when the company sought to shut down a Pennsylvania plant, lay off the work
force there, and move the work to a plant in Georgia in order to avoid
negotiations with a union); Maram v. Universidad Interamericana de Puerto
Rico, Inc., 722 F.2d 953 (1st Cir. 1983) (remanding for issuance of an injunction
in a case involving “a discharge of the entire workforce in the face of
unionization”).
These cases provide a defining contrast to the findings in the district
court’s order. In its order, the district court stated that Creative Vision’s
“failure as successor to negotiate with the Union disrupted the status quo ante,
and temporary injunctive relief will restore that status quo.” To be sure, this
result is not an uncommon consequence in successor cases that arise before the
NLRB. The district court did not articulate specifically how this particular
conduct created an egregious case of refusal to bargain. The district court did
not explain, for example, how Creative Vision’s work force or the union suffered
egregious or otherwise exceptional harm within the context of the usual NLRA
cases as a result of Creative Vision’s failure to bargain. Nor did it indicate the
reasons a § 10(j) injunction is now more appropriate to address these issues
than a Board order enforced through processes established under the NLRA.
To the contrary, the district court, in fact, concluded that it could not identify
“any reason why restoring the bargaining relationship now would be less
effective than later NLRB relief.” ROA.879. This statement of the district court
is clearly contrary to Pilot Freight, as injunctive relief must be affirmatively
more effective than a final decision from the NLRB. 515 F.2d at 1192.
Critically, the district court’s findings do not support a conclusion that
Creative Vision’s conduct was in the egregious category, as compared to other
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unfair labor practices, as our Circuit plainly requires. Id. Injunctive relief
may be warranted, for example, when unfair labor practices cause severe anti-
union sentiment to emerge, but the district court made no factual finding
suggesting that such sentiment has developed here. Cf. Overstreet, 625 F.3d
at 856–57 (concluding that a district court could issue an injunction based in
part on evidence that the employer’s activities had been “a direct cause” of anti-
union sentiment and that the actions “led to several petitions to decertify the
Union as the workers’ representative”). To the point, the district court’s
findings do not indicate specific, egregious or exceptional, employer conduct or
harms in this case that support a § 10(j) injunction, as this Court’s precedent
plainly requires. 7 See Pilot Freight, 515 F.2d at 1192. The district court’s
omissions are particularly pronounced on these facts because it issued the
injunction some three years after the alleged unfair labor practices were
initiated. Thus, we conclude that the district court and the NLRB have failed
to articulate either evidence or reasons, in the context of the NLRA violations,
that justify resorting to an injunction.
On appeal, the NLRB argues that the injunction should issue because
the unfair labor practice here is failure to bargain in the successorship context:
that is, where a new employer takes over a pre-existing group of unionized
employees and refuses to bargain with the employees’ “former” union. The
NLRB points to the Supreme Court’s decision in Fall River Dyeing & Finishing
Corp. v. NLRB, which recognized that a union is especially vulnerable when
7 The NLRB does make several references to specific harms in its brief. Specifically,
it stated that Creative Vision hoppers now have fewer holidays, that several employees have
faced discipline without union support or grievance procedures, and that Creative Vision may
alter the hoppers’ terms of employment without adequate consultation. We emphasize,
however, that the district court did not address any of these points, or counterpoints thereto,
when it considered equitable necessity. Although we can certainly sympathize with the
employees, who have fewer benefits, these grievances will be addressed by the Board’s
administrative remedy.
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negotiating with a successor employer because it is “uncertain about the new
employer’s plans, and cannot be sure if or when the new employer must
bargain with it.” 482 U.S. 27, 39 (1987). Fall River, however, does not involve
§ 10(j) of the NLRA, and consequently does not authorize an injunctive remedy
as a substitute for the established administrative remedy. Indeed, the Fall
River Court addressed a final NLRB administrative decision that had
proceeded under the appropriate administrative framework, which lends some
support to the point that the administrative process can deal effectively with
many successorship cases. See id. at 34–35.
Nonetheless, the NLRB points us to various other courts that have
referenced Fall River in the § 10(j) context. 8 See, e.g., Small v. Avanti Health
Sys., LLC, 661 F.3d 1180, 1194–95 (9th Cir. 2011). To the extent that Small
authorizes injunctive relief based solely on the type of labor practice at issue,
we find it unpersuasive. Indeed, we note that the Small court relied
substantially on speculative and generalized harms, emphasizing, for example,
“that failure to bargain will likely cause a myriad of irreparable harms.” Id. at
1191 (emphasis added). In its brief, the NLRB engages in a similar line of
reasoning, pointing out that Creative Vision’s conduct discourages
participation in the union without offering specifics regarding the impact in
this case. Although we certainly acknowledge that the type of unfair labor
8 To that end, the NLRB’s counsel urged at oral argument that the NLRB’s policy is
to seek injunctive relief when the successor employer fails to bargain with the pre-existing
union. In support, it filed a series of policy analyses from the Department of Labor suggesting
that failure to bargain in this context is often an appropriate candidate for injunctive relief.
To the extent that these documents establish a policy to seek injunctive relief in these cases,
we decline to read them to demonstrate that the NLRB is entitled to injunctive relief in all
cases where a successor employer refuses to negotiate with the union. At most, these
documents suggest that we should require fewer additional facts to support injunctive relief
in successorship cases than in other cases, but they do not support the view that injunctive
relief should issue in every case without due consideration of the specific facts in that case.
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practice plays a role in the quantity of proof that must be offered to establish
egregious or exceptional harm, we hold that the district court must articulate
specific reasons to justify the issuance of an injunction based on the facts in
the specific case.
We recognize that any unfair labor practice may cause, and often does
cause, serious harms affecting the rights of workers and labor unions. In many
cases, the union is weakened as a result of unfair labor practices on the part of
employers, and individual employees may lose important benefits of their
employment as a result. We do not downplay the serious consequences of many
unfair labor practices. The remedy for such practices, however, typically lies
with the NLRB’s administrative process—not with the district courts, which
are often poorly equipped to deal with these complex and nuanced cases in a
field of specialty law. Injunctive relief in the federal district court under § 10(j)
is available and appropriate when the unfair labor practices are particularly
egregious or otherwise exceptional, as compared to other NLRA violations. See
Pilot Freight, 515 F.2d at 1192. Both the NLRB and the district court have
failed to articulate facts that suggest the administrative process is insufficient
to afford relief in this case as it now appears before us.
IV.
In sum, we hold that the NLRB and the district court have failed to
establish specific egregious or exceptional harms in the context of this case that
warrant § 10(j) relief. The alleged unfair labor practices here, although
significant, are not of the egregious or exceptional category, when compared to
other NLRA violations. Because the petition for injunctive relief has been
pending for several years and is now before the NLRB for a final decision, the
extraordinary remedy of a § 10(j) injunction is unnecessary as far as appears
on the record before us. Thus, the district court abused its discretion by
granting this injunction. We therefore remand this case for such further
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proceedings and reconsideration in the light of this opinion, as may be deemed
appropriate in the discretion of the district court.
VACATED and REMANDED.
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