Muffley Ex Rel. NLRB v. Spartan Mining Co.

Filed: July 13, 2009

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-1973(L)

(2:08-cv-00073)

GARY W. MUFFLEY, Regional Director of the Ninth Region of the

National Labor Relations Board, for and on behalf of; NATIONAL

LABOR RELATIONS BOARD,

Petitioners - Appellees,

v.

SPARTAN MINING COMPANY, d/b/a Mammoth Coal Company,

Respondent - Appellant,

and

MASSEY ENERGY COMPANY, and its subsidiary,

Respondent.

----------------------------------------------

UNITED MINE WORKERS OF AMERICA,

Amicus Supporting Appellees.

O R D E R

The court amends its opinion filed July 1, 2009, as follows:

On page 11, first full paragraph, lines 2 and 3, the word

“distinct” is corrected to read “district.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GARY W. MUFFLEY, Regional 

Director of the Ninth Region of

the National Labor Relations

Board, for and on behalf of;

NATIONAL LABOR RELATIONS

BOARD,

Petitioners-Appellees,

v.

SPARTAN MINING COMPANY, d/b/a



Mammoth Coal Company,

No. 08-1973

Respondent-Appellant,

and

MASSEY ENERGY COMPANY, and its

subsidiary,

Respondent.

UNITED MINE WORKERS OF

AMERICA,

Amicus Supporting Appellees.



2 MUFFLEY v. SPARTAN MINING COMPANY

GARY W. MUFFLEY, Regional 

Director of the Ninth Region of

the National Labor Relations

Board, for and on behalf of;

NATIONAL LABOR RELATIONS

BOARD,

Petitioners-Appellees,

v.

MASSEY ENERGY COMPANY, and its



subsidiary,

No. 08-2067

Respondent-Appellant,

and

SPARTAN MINING COMPANY, d/b/a

Mammoth Coal Company,

Respondent.

UNITED MINE WORKERS OF

AMERICA,

Amicus Supporting Appellees.



MUFFLEY v. SPARTAN MINING COMPANY 3

GARY W. MUFFLEY, Regional 

Director of the Ninth Region of

the National Labor Relations

Board, for and on behalf of;

NATIONAL LABOR RELATIONS

BOARD,

Petitioners-Appellants,

v.

SPARTAN MINING COMPANY, d/b/a

Mammoth Coal Company; MASSEY

 No. 08-2201

ENERGY COMPANY, and its

subsidiary,

Respondents-Appellees.

UNITED MINE WORKERS OF

AMERICA,

Amicus Supporting Appellants.



Appeals from the United States District Court

for the Southern District of West Virginia, at Charleston.

Joseph R. Goodwin, Chief District Judge.

(2:08-cv-00073)

Argued: May 12, 2009

Decided: July 1, 2009

Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opin-

ion, in which Judge Gregory and Judge Duncan joined.

4 MUFFLEY v. SPARTAN MINING COMPANY

COUNSEL

ARGUED: Forrest Hansbury Roles, DINSMORE & SHOHL

LLP, Charleston, West Virginia, for Spartan Mining Com-

pany, d/b/a Mammoth Coal Company and Massey Energy

Company, and its subsidiary. Laura T. Vazquez, NATIONAL

LABOR RELATIONS BOARD, Washington, D.C., for Gary

W. Muffley, Regional Director of the Ninth Region of the

National Labor Relations Board, for and on behalf of the

National Labor Relations Board. Judith E. Rivlin, UNITED

MINE WORKERS OF AMERICA, Fairfax, Virginia, for

Amicus Curiae United Mine Workers of America. ON

BRIEF: Brace R. Mullett, DINSMORE & SHOHL LLP,

Charleston, West Virginia; Richard R. Parker, Jennifer S.

Rusie, OGLETREE, DEAKINS, NASH, SMOAK & STEW-

ART, PC, Nashville, Tennessee, for Spartan Mining Com-

pany, d/b/a Mammoth Coal Company and Massey Energy

Company, and its subsidiary. John E. Higgins, Jr., Deputy

General Counsel, Barry J. Kearney, Associate General Coun-

sel, Judith I. Katz, Assistant General Counsel, Steven L.

Sokolow, Deputy Assistant General Counsel, NATIONAL

LABOR RELATIONS BOARD, Washington, D.C., for Gary

W. Muffley, Regional Director of the Ninth Region of the

National Labor Relations Board, for and on behalf of the

National Labor Relations Board. Charles F. Donnelly,

UNITED MINE WORKERS OF AMERICA, Charleston,

West Virginia; Grant Crandall, UNITED MINE WORKERS

OF AMERICA, Fairfax, Virginia, for Amicus Curiae United

Mine Workers of America.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

After an administrative law judge found that Mammoth

Coal Company had systematically discriminated against union

MUFFLEY v. SPARTAN MINING COMPANY 5

members, the National Labor Relations Board sought injunc-

tive relief in federal district court pursuant to § 10(j) of the

National Labor Relations Act. Following an evidentiary hear-

ing, the district court issued a detailed written opinion,

explaining its order granting this relief in part and denying it

in part. The court ordered Mammoth to offer employment to

persons that it had refused to hire because of union affiliation

but denied substantial additional injunctive relief sought by

the Board. Mammoth appeals, and the Board cross-appeals.

For the reasons that follow, we affirm the judgment of the dis-

trict court.

I.

A.

In October 2004, A.T. Massey Coal Company acquired in

bankruptcy the coal mining assets of Cannelton Industries,

Inc. and Dunn Coal and Dock (Cannelton/Dunn). Massey

assigned these assets to its subsidiary, Spartan Mining Com-

pany, which does business as Mammoth Coal Company

(Mammoth). Mammoth then took over operation of the coal

mining facilities located on the Cannelton/Dunn property.

In December 2004, Mammoth began hiring production and

maintenance workers for this property. Prior to resuming min-

ing operations, Mammoth offered employment interviews to,

and eventually hired, most of the non-bargaining unit employ-

ees who had worked at Cannelton/Dunn. Mammoth largely

refused, however, to extend employment or even interviews

to Cannelton/Dunn laborers who were members of the United

Mine Workers of America (UMWA). Instead, Mammoth

filled vacant positions with inexperienced trainees and nonun-

ion employees from its own nearby facilities, even though

those facilities themselves were experiencing labor shortages.

On June 2, 2005, in reaction to this apparent illegal activity,

the UMWA filed an unfair labor practice charge with the

6 MUFFLEY v. SPARTAN MINING COMPANY

National Labor Relations Board. The General Counsel for the

Board investigated the matter and filed a complaint with the

Board against Mammoth on August 18, 2006, alleging multi-

ple violations of the National Labor Relations Act (NLRA).

Over a six-week period, commencing on January 22, 2007,

and ending on March 15, 2007, an administrative law judge

(ALJ) conducted a 16-day evidentiary proceeding regarding

this complaint. On November 21, 2007, in an exhaustively

detailed opinion, the ALJ found that Mammoth had violated

the NLRA.

The ALJ first held that Mammoth violated §§ 8(a)(1) and

8(a)(3) of the NLRA, 29 U.S.C. §§ 158(a)(1), (3) (2006), by

discriminatorily refusing to hire union employees of Cannel-

ton/Dunn in order to avoid an obligation to recognize and bar-

gain with the union. The ALJ found abundant support for a

prima facie case of discrimination, including not just circum-

stantial evidence but also overt anti-union statements made by

Mammoth officials. In reaching its conclusion, the ALJ con-

sidered, analyzed, and then rejected each of Mammoth’s prof-

fered non-discriminatory reasons for its hiring decisions,

noting that these justifications were "contradictory" and had

"shift[ed]" over the course of litigation. Moreover, the ALJ

also found that Mammoth, as a legal successor to the Cannel-

ton/Dunn operation that had failed to recognize and bargain

collectively with the predecessor union, had violated § 8(a)(5)

of the NLRA. Id. § 158(a)(5).

Based on these findings, the ALJ’s recommended order cal-

led for broad relief, including immediate employment offers

and back pay for 85 listed discriminatees, forced recognition

and bargaining with the union, rescission of any unilateral

changes to employment terms and conditions, and remission

of all wages and benefits that Mammoth would have paid

absent discrimination. Both sides filed exceptions to the

ALJ’s proposed order; the matter remains pending before the

Board.

MUFFLEY v. SPARTAN MINING COMPANY 7

B.

In order to preserve the Board’s remedial power during the

pendency of administrative proceedings, the Board’s regional

director petitioned the federal district court for temporary

injunctive relief under § 10(j) of the NLRA. Section 10(j) pro-

vides a means for the Board to seek an order from the court

temporarily enjoining asserted unfair labor practices. See 29

U.S.C. § 160(j) (2006); Kinney v. Pioneer Press, 881 F.2d

485, 487–88 (7th Cir. 1989). In December 2007, due to antici-

pated reductions from its full five-member complement,

which would take the Board below its quorum of three mem-

bers, and pursuant to 29 U.S.C. § 153(d) (2006), the Board

delegated its § 10(j) powers to its General Counsel. The Gen-

eral Counsel, in turn, recused himself (because of personal

ties to the case) and delegated this power in the case at hand

to the Deputy General Counsel.

Shortly after the General Counsel delegated this authority

to him, the Deputy General Counsel authorized the regional

director to petition the district court for temporary injunctive

relief under § 10(j). Mammoth moved to dismiss the petition,

arguing that the Board lacked authority to delegate its § 10(j)

powers. In a written opinion, the district court denied this

motion. Muffley v. Massey Energy Co., 547 F. Supp. 2d 536

(S.D. W. Va. 2008).

The district court then held an evidentiary hearing on the

merits of the Board’s petition, at which the court heard testi-

mony from a number of witnesses. During that hearing, Mam-

moth conceded that the Board had demonstrated "reasonable

cause" to believe that Mammoth violated the NLRA. After

consideration of both the evidence offered by the parties and

their oral and written arguments, the district court issued a

thorough and well-reasoned opinion. Muffley v. Massey

Energy Co., No. 2:08-cv-00073, 2008 WL 4103881 (S.D. W.

Va. August 29, 2008). The court found that limited injunctive

relief—ordering Mammoth to offer employment to the

8 MUFFLEY v. SPARTAN MINING COMPANY

alleged discriminatee employees—was "just and proper"

under § 10(j) to preserve the effectiveness of any ultimate

Board order. Id. at *9. But the court refused to grant the other

injunctive relief that the Board requested. Specifically, the

court declined to order Mammoth to recognize and bargain

with the union, post notices of the district court’s order

throughout its workplace, or rescind any unilaterally imposed

employment conditions, finding those measures unnecessary

to preserve the Board’s remedial powers in this case. Id. at

*12. Both Mammoth and the Board noted timely appeals.

While those appeals were pending before us, Mammoth

moved in this court for a stay of the district court’s order that

it offer employment to the alleged discriminatee employees.

The order, Mammoth claimed, would result in irreparable

harm to the company because it might have to displace some

of its current employees to accommodate the hiring of dis-

criminatees. Before we could act on Mammoth’s motion,

however, the company withdrew the motion, acknowledging

that, after it offered positions to all of the discriminatees, it

had been able to hire all who sought employment without lay-

ing off any employees. See Mammoth’s Mot. to Withdraw

Mot. For Stay of Inj. Pending Appeal at 2, No. 08-1973 (4th

Cir. Oct. 15, 2008).

II.

As a preliminary matter, Mammoth argues that neither this

court nor the district court can consider this case because the

Board improperly delegated the power to seek § 10(j) relief to

its General Counsel.1 The district court held, and we agree,

that the NLRA expressly authorizes this delegation.

1

Before the district court, Mammoth also challenged the additional dele-

gation of § 10(j) authority from the General Counsel to the Deputy Gen-

eral Counsel. Mammoth seems to have abandoned this argument on

appeal. In any event, like the district court, we find that delegation lawful

under the Federal Vacancies Reform Act. See 5 U.S.C. § 3345(a)(1)

(2006).

MUFFLEY v. SPARTAN MINING COMPANY 9

Congress vested the power to seek § 10(j) relief with the

Board. See 29 U.S.C. § 160(j) (2006) ("The Board shall have

power . . . to petition any United States district court . . . for

appropriate temporary relief or restraining order."). However,

when it created the office of the General Counsel, Congress

also provided in § 3(d) of the NLRA that the General Counsel

"shall have final authority, on behalf of the Board, in respect

of the investigation of charges and issuance of complaints

under [§ 10 of the NLRA] . . . and shall have such other

duties as the Board may prescribe." Id. § 153(d) (emphasis

added). As Mammoth acknowledges, every court that has

addressed this issue has found that § 3(d) permits the Board

to delegate to the General Counsel its power to seek § 10(j)

relief. See, e.g., Kentov v. Point Blank Body Armor, Inc., 258

F. Supp. 2d 1325, 1329 (S.D. Fla. 2002); Penello v. Int’l

Union, UMWA, 88 F. Supp. 935, 937 (D.D.C. 1950); Evans

v. Int’l Typographical Union, 76 F. Supp. 881, 888–89 (S.D.

Ind. 1948).

Nevertheless, Mammoth contends that § 3(d) only provides

for delegation of certain "duties" and that the decision to seek

§ 10(j) relief constitutes a fundamental "power" that the

Board cannot delegate. Mammoth attempts to distinguish the

two terms, equating "duties" with prosecutorial functions and

"power" with adjudicative functions, and then relies on the

general rule that although the Board may delegate prosecu-

torial functions to the General Counsel, it may not assign

away its core adjudicative functions. See Flav-O-Rich, Inc. v.

NLRB, 531 F.2d 358, 363–64 (6th Cir. 1976); KFC Nat’l

Mgmt. Corp. v. NLRB, 497 F.2d 298, 303, 306–07 (2d Cir.

1974).

The central question, then, is whether the ability to seek

§ 10(j) relief is prosecutorial or adjudicative in nature. This

ability seems to us, as it has to all other courts, clearly pro-

secutorial: seeking § 10(j) relief from a district court adjudi-

cates nothing. Whether the Board or the General Counsel

petitions a district court for relief, the adjudicative function—

10 MUFFLEY v. SPARTAN MINING COMPANY

the ultimate decision to grant relief—lies with the district

court. See Kentov, 258 F. Supp. 2d at 1328. Delegation of the

prosecutorial decision to request relief does not interfere with

the structure of the NLRA nor divest the Board of its adjudi-

cative power. The Board may therefore lawfully delegate

§ 10(j) authority to the General Counsel pursuant to § 3(d) of

the NLRA.2

III.

Mammoth next poses essentially two arguments with

respect to the merits of the district court’s limited § 10(j)

injunction. First, Mammoth insists that the district court com-

mitted reversible error in applying an improper standard in

deciding whether to grant the § 10(j) injunction. Second,

Mammoth contends that even if the district court’s selection

of a standard does not require reversal, the district court

abused its discretion in granting the Board injunctive relief.

We consider each argument in turn.

A.

1.

Section 10(j) provides that a district court shall award tem-

porary injunctive relief "as it deems just and proper." 29

2

In its attempt to avoid the plain meaning of § 3(d), Mammoth proffers

two arguments. First, it contends, citing floor statements, that legislative

history indicates that Congress intended the Board and the General Coun-

sel to be independent decision makers. See, e.g., 93 Cong. Rec. 6383

(1947). These statements do not support Mammoth’s view that the Board

cannot delegate its § 10(j) powers to the General Counsel and, even if they

did, these fragments of legislative history could not undermine our duty

to enforce the unambiguous language of § 3(d). Mammoth also argues that

the delegation of § 10(j) powers to the General Counsel runs counter to the

Board’s established practice. This contention is simply inaccurate. Such

delegations occurred—and courts approved them—soon after Congress

established the General Counsel. See Penello, 88 F. Supp. at 937; Evans,

76 F. Supp. at 888–89.

MUFFLEY v. SPARTAN MINING COMPANY 11

U.S.C. § 160(j) (2006). The meaning of this simple language,

which the Supreme Court has never directly addressed, has

vexed the courts and spawned three competing standards for

judging the propriety of § 10(j) relief.

Likening § 10(j) injunctions to relief pursuant to § 10(l) of

the NLRA, many circuits have held that § 10(j) requires a dis-

trict court to follow a two-step approach, determining

whether (1) "reasonable cause" exists to believe a violation of

the NLRA has occurred, and (2) injunctive relief is "just and

proper." See Ahearn v. Jackson Hosp. Corp., 351 F.3d 226,

234–36 (6th Cir. 2003); Sharp v. WEBCO Indus., Inc., 225

F.3d 1130, 1133–34 (10th Cir. 2000); Hirsch v. Dorsey Trail-

ers, Inc., 147 F.3d 243, 247 (3d Cir. 1998); Arlook v. S. Lich-

tenberg & Co., 952 F.2d 367, 371 (11th Cir. 1992); Boire v.

Pilot Freight Carriers, Inc., 515 F.2d 1185, 1188–89 (5th Cir.

1975). Although these courts differ on precisely how strong

the evidence must be to establish "reasonable cause," see

WEBCO Indus., 225 F.3d at 1134, they essentially agree that

the "just and proper" inquiry turns on whether temporary

injunctive relief is necessary to preserve the effectiveness of

the remedy that the Board may ultimately order. See, e.g.,

Ahearn, 351 F.3d at 239.

Other circuits have rejected this two-step standard. See

Sharp v. Parents in Cmty. Action, Inc., 172 F.3d 1034,

1038–39 (8th Cir. 1999); Miller v. Cal. Pac. Med. Ctr., 19

F.3d 449, 456–60 (9th Cir. 1994) (en banc); Kinney, 881 F.2d

at 493. These courts note that § 10(j), unlike § 10(l), does not

explicitly require a separate "reasonable cause" step and inter-

pret § 10(j)’s "just and proper" clause to embody the estab-

lished four-factor standard applicable to any preliminary

injunction requested pursuant to Fed. R. Civ. P. 65(a). See,

e.g., Kinney, 881 F.2d at 489–90. Under this traditional equi-

table standard, a district court determines whether to grant

§ 10(j) relief by weighing the following four factors: (1) the

possibility of irreparable injury to the moving party if relief

is not granted; (2) the possible harm to the nonmoving party

12 MUFFLEY v. SPARTAN MINING COMPANY

if relief is granted; (3) the likelihood of the moving party’s

success on the merits; and (4) the public interest. See Black-

welder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189,

195–96 (4th Cir. 1977).

Finally, the First and Second Circuits have developed a

hybrid standard. These courts incorporate the traditional four-

part equitable standard into the "just and proper" analysis, yet

retain a separate "reasonable cause" step. See, e.g., Hoffman

v. Inn Credible Caterers, Ltd., 247 F.3d 360, 365, 368 (2d

Cir. 2001); Pye v. Sullivan Bros. Printers, Inc., 38 F.3d 58, 63

(1st Cir. 1994).

2.

This circuit has never directly addressed the issue that has

divided our sister circuits. In NLRB v. Aerovox Corp., 389

F.2d 475, 476 (4th Cir. 1967), on which the Board principally

relies, we did look to out-of-circuit authority applying the

two-step standard in § 10(j) cases, but Aerovox itself arose

under § 10(e) of the NLRB. Moreover, nothing in Aerovox

indicates that the standard as to the grant of injunctive relief

was at issue; rather, the parties simply disputed the applica-

tion of that standard to the facts of the case. In Johnston v.

J.P. Stevens & Co., 341 F.2d 891, 892 (4th Cir. 1965), a brief

per curiam opinion, we did review a § 10(j) injunction, but

simply mentioned, without any analysis, the "just and proper"

standard. Notably, the parties here place little reliance on

Johnston, citing it only briefly and in passing.

Whatever the precedential force of Aerovox or Johnston,

the Supreme Court’s more recent analysis in Weinberger v.

Romero-Barcelo, 456 U.S. 305 (1982), provides compelling

guidance as to the appropriate § 10(j) standard. In that case,

the Supreme Court stated that, unless directed otherwise by

Congress, courts should exercise their traditional equitable

discretion. The Court explained that if Congress intends to

MUFFLEY v. SPARTAN MINING COMPANY 13

depart from this "established" rule—which of course it may

do—it must do so in a clear manner:

[W]e do not lightly assume that Congress has

intended to depart from established principles. . . .

". . . Unless a statute in so many words, or by a nec-

essary and inescapable inference, restricts the court’s

jurisdiction in equity, the full scope of that jurisdic-

tion is to be recognized and applied."

Id. at 313 (quoting Porter v. Warner Holding Co., 328 U.S.

395, 398 (1946)) (citation omitted).

In light of Romero-Barcelo, we believe that, in determining

if a § 10(j) injunction should issue, the traditional four-part

equitable test should govern what relief is "just and proper."

Therefore, district courts are to utilize the Blackwelder factors

in conducting the "just and proper" analysis and need not

undertake a separate "reasonable cause" inquiry to determine

whether to issue a § 10(j) injunction.

In reaching this conclusion, we note that § 10(j) includes no

explicit reference to "reasonable cause." Rather, the plain lan-

guage of the statute requires only that the district court find

injunctive relief "just and proper." See 29 U.S.C. § 160(j)

(2006). Certainly, the phrase "just and proper" does not

evince a "necessary and inescapable" congressional intent to

depart from traditional equitable standards. Romero-Barcelo,

456 U.S. at 313. To the contrary, "‘just and proper’ is another

way of saying ‘appropriate’ or ‘equitable.’" Miller, 19 F.3d at

458. Thus no language in § 10(j) compels departure from the

traditional four-part test for equitable relief; in such circum-

stances, Romero-Barcelo indicates that courts should apply

that test. 456 U.S. at 320.

Those courts that have refused to follow the interpretative

guidance set forth in Romero-Barcelo, and have read an addi-

14 MUFFLEY v. SPARTAN MINING COMPANY

tional "reasonable cause" requirement into § 10(j), do so only

by analogizing to § 10(1), which does explicitly require "rea-

sonable cause." 29 U.S.C. § 160(l) (2006). Not only does this

ignore the fact that § 10(j) contains no such language, but it

also overlooks important differences between § 10(j) and

§ 10(l) relief.

Section 10(l) is mandatory: upon a showing of reasonable

cause that specific types of unfair practices have occurred, the

General Counsel must seek injunctive relief in the district

court. Id. In this context, once the Board discovers enough

evidence to establish "reasonable cause," it is required to act.

See Kinney, 881 F.2d at 489.

Section 10(j), in contrast, is discretionary, allowing the

Board to seek injunctive relief only after the General Counsel

has filed a complaint with the Board. 29 U.S.C. § 160(j)

(2006). Because by that time the General Counsel will have

conducted thorough investigation and made a considered

judgment about the merits of the case, the district court need

not duplicate those efforts to ensure that "reasonable cause"

exists. See Kinney, 881 F.2d at 489–90.

Accordingly, district courts in this Circuit are to utilize the

traditional four-factor equitable test in determining whether it

is "just and proper" to grant or deny § 10(j) injunctions; no

further "just and proper" analysis is necessary or appropriate.

But, of course, district courts should apply this test in light of

the underlying purpose of § 10(j): preserving the Board’s

remedial power pending the outcome of its administrative

proceedings. See Miller, 19 F.3d at 459–60.

Here, the district court did not apply this precise standard;

instead, it added to it the "reasonable cause" analysis that we

now hold unnecessary. But Mammoth does not allege any

harm from the district court’s addition of a "reasonable cause"

step, and we can see none. As other courts have recognized,

whether a court makes a separate "reasonable cause" inquiry

MUFFLEY v. SPARTAN MINING COMPANY 15

is nearly always immaterial to the outcome. See Kinney, 881

F.2d at 493 ("[W]e did not find a[ny] case in which the pres-

ence or absence of ‘reasonable cause’ made a difference.");

Pye v. Excel Case Ready, 238 F.3d 69, 72 n.5 (1st Cir. 2001).

This is so because, under the traditional four-factor standard,

the court must still determine the Board’s likelihood of suc-

cess on the merits, an inquiry that essentially parallels the

"reasonable cause" step. Kinney, 881 F.2d at 491. Moreover,

in this case, Mammoth expressly conceded that reasonable

cause existed. The district court’s recognition of that conces-

sion surely does not constitute reversible error.

Mammoth, however, does allege that reversible error

occurred because the court failed to consider the balance of

harms and other equitable factors, thus assertedly failing to

follow the traditional four-factor equitable test. Some courts

applying the two-step standard have focused the "just and

proper" step almost entirely on whether an injunction is nec-

essary to preserve the Board’s remedial power. See, e.g., Hir-

sch, 147 F.3d at 247. We agree with Mammoth that such an

approach might well slight the countervailing harms to the

nonmoving party and the public interest, which the traditional

four-factor standard expressly requires courts to weigh.

But the district court here did not neglect those factors. On

the contrary, the district court’s analysis explicitly "incorpor-

ate[d] equitable principles into its ‘just and proper’ analysis,"

and properly "balanced the interests of the [Board] and

alleged discriminatee miners, [Mammoth], and the public."

Muffley, 2008 WL 4103881, at *7, *9. The district court thus

made clear that, in its view, a limited injunction satisfied the

traditional four-factor equitable test. We therefore must reject

Mammoth’s first argument.

B.

Mammoth alternatively contends that, even if the district

court committed no reversible error in its choice of legal stan-

16 MUFFLEY v. SPARTAN MINING COMPANY

dard, it nonetheless did so in awarding a limited injunctive

relief. We review an order granting an injunction for an abuse

of discretion, reviewing factual findings for clear error and

legal conclusions de novo. See E. Tenn. Natural Gas Co. v.

Sage, 361 F.3d 808, 828 (4th Cir. 2004); Ahearn, 351 F.3d at

237.

Mammoth first asserts that the district court erred in finding

that the Board had shown possible irreparable harm resulting

from a refusal to grant any injunctive relief. In fact, abundant

evidence before the district court demonstrated that, without

some measure of preliminary relief, many of the victims of

the alleged discrimination would either retire or move away

in search of other employment. Muffley, 2008 WL 4103881,

at *10. In such a situation, even a well-established union like

the UMWA might well lose support over time, such that when

the Board does issue its order, it might be impossible for the

union to reconstitute. The passage of time thus posed a very

real—and potentially irreparable—harm to the effectiveness

of the Board’s eventual order. Congress intended § 10(j) relief

to prevent precisely such harms. See Miller, 19 F.3d at 455 &

n.3. Mammoth’s initial challenge to the district court’s grant

of limited § 10(j) relief therefore fails.

Mammoth next argues that the district court gave insuffi-

cient weight to the harm that an injunction could pose to it.

Specifically, Mammoth contends that because the § 10(j)

order forced it to offer jobs to the discriminatee employees,

the company might have had to lay off some of its current

employees. In applying the usual equitable standards, a court

must, of course, balance the harms to the nonmoving party

against the threat of irreparable harm to the party seeking an

injunction. See Scotts Co. v. United Indus. Corp., 315 F.3d

264, 284–85 (4th Cir. 2002). The district court did that here.

Muffley, 2008 WL 4103881, at *9, *11. In particular, the

court found this possible harm to Mammoth unlikely because

record evidence indicated that, as late as March 2008, Mam-

moth had advertised for additional employees to fill positions

MUFFLEY v. SPARTAN MINING COMPANY 17

formerly held by the discriminatees. Id. at *11. Indeed, Mam-

moth has now conceded that after it complied with the district

court’s order and offered employment to the discriminatees,

it did not need to displace any of its other employees. Thus,

Mammoth’s second challenge also fails—the district court did

not abuse its discretion in finding that the balance of harms

favored the Board.

Finally, Mammoth argues that the delay between the alleg-

edly unfair labor practices and the petition for § 10(j) relief

renders a grant of any § 10(j) relief improper. Section 10(j)

does not allow the Board to seek injunctive relief until the

General Counsel files a formal complaint. 29 U.S.C. § 160(j)

(2006). Here, the General Counsel filed the complaint in

August 2006, but the Deputy General Counsel did not autho-

rize the regional director to petition the district court for relief

until January 2008, almost 18 months later. The Board justi-

fies its delay by noting that the General Counsel waited until

the ALJ issued his opinion, in order to settle an exceedingly

complex and disputed factual record. The Board also main-

tains that we should not punish the discriminatee employees

for a delay beyond their control. See Hirsch, 147 F.3d at 249.

Although these factors provide a measure of justification

for the delay, the extent of the Board’s delay in this case trou-

bles us, as it did the district court. Clearly, excessive delay

can undermine the propriety of § 10(j) relief. As time elapses,

it becomes less likely that injunctive relief can undo harms

that have occurred in the interim. See WEBCO Indus., 225

F.3d at 1135–36. Nonetheless, delay is an unfortunate reality

in any matter before the Board and not only because of the

volume of its docket. Complicated labor disputes like this one

require time to investigate and litigate. See Pascarell v. Vibra

Screw Inc., 904 F.2d 874, 881 (3d Cir. 1990); Maram v.

Universidad Interamericana de Puerto Rico, Inc., 722 F.2d

953, 960 (1st Cir. 1983). Moreover, Mammoth, the party

complaining of the delay, in fact contributed to the delay in

this case through its litigation tactics.

18 MUFFLEY v. SPARTAN MINING COMPANY

The unusual delay here surely counts as a factor that the

district court should, and did, consider in determining whether

it should grant § 10(j) relief.3 However, the district court also

properly weighed the delay against not only the court’s well-

supported finding that the balance of harms favored the Board

but also the evidence of the Board’s considerable likelihood

of success on the merits and of the strong public policy inter-

ests favoring some injunctive relief. Given the substantial vio-

lations of the NLRA that the ALJ found—and Mammoth’s

concession that reasonable cause existed to believe that it vio-

lated the NLRA—the record indicates that the Board will very

likely order permanent injunctive relief. The record also pro-

vides substantial evidence that Mammoth made overt efforts

to block reasonable collective bargaining, the vehicle that

Congress has determined best achieves "industrial peace."

Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27,

38 (1987); see also 29 U.S.C. § 151 (2006).

Accordingly, after careful review of the record and in light

of the district court’s painstaking consideration of all the rele-

vant factors, we conclude that, notwithstanding the delay, the

district court acted within its discretion in granting limited

§ 10(j) relief.4

3

Although Mammoth contends that the district court completely "ignor-

[ed]" the Board’s delay, an examination of the district court’s opinion

belies this contention. The district court devoted an entire section of its

opinion to Mammoth’s delay argument, expressly considering delay as "a

factor" in determining whether an injunction should issue. Muffley, 2008

WL 4103881, at *13.

4

Mammoth offers two other challenges to the district court’s injunction;

we reject both. First, Mammoth argues that the district court improperly

took "judicial notice" of the ALJ’s opinion. This contention has no merit,

for the district court clearly explained that the ALJ’s opinion constituted

"at best . . . background information." Muffley, 2008 WL 4103881, at *5.

Indeed, rather than relying on the ALJ findings, the district court heard

live testimony from witnesses and solicited briefs from the parties. Sec-

ond, Mammoth challenges the district court’s order that the § 10(j) relief

extend to all Mammoth properties and not just the Cannelton/Dunn prop-

MUFFLEY v. SPARTAN MINING COMPANY 19

IV.

Finally, we turn to the Board’s cross-appeal. The Board

contends that the district court erred in refusing to award more

extensive injunctive relief. In particular, the Board asserts that

the district court abused its discretion by denying the Board

(1) an injunction ordering Mammoth immediately to recog-

nize and bargain with the UMWA, and (2) an injunction

rescinding any unilaterally imposed initial employment terms.

The district court refused to grant this relief, finding it unnec-

essary to preserve the effectiveness of the Board’s ultimate

order. We can find no error in this holding.

Rather, the district court correctly recognized that § 10(j)

relief is extraordinary and that such relief should be narrowly

tailored. See Arlook, 952 F.2d at 374. For after all, § 10(j)

only authorizes interim injunctive relief "reasonably neces-

sary to preserve the ultimate remedial power of the Board and

is not to be a substitute for the exercise of that power."

Schaub v. Detroit Newspaper Agency, 154 F.3d 276, 279 (6th

Cir. 1998) (quotation omitted). In this case, the limited relief

granted by the reinstatement order completely accomplishes

this purpose. That limited injunction provides an offer of jobs

for the discriminatee miners to prevent them from moving

away in search of other employment. It thereby preserves a

critical mass of bargaining unit employees at Mammoth 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 contrast, the Board did not demonstrate that in this case

preservation of its remedial powers justified an injunction

erty. Id. at *13 n.3. The district court did not abuse its discretion in so

holding. The court made a factual finding that Mammoth moved miners

among its properties. Id. Given this and the fact that Mammoth could eas-

ily close or scale back the mines at the former Cannelton/Dunn site, not

extending the order in this fashion might have rendered it completely inef-

fective.

20 MUFFLEY v. SPARTAN MINING COMPANY

ordering interim bargaining or rescission of certain employ-

ment terms. Of course, such interim relief may be necessary

to preserve the Board’s power in other cases with other facts,

see, e.g., Asseo v. Centro Medico del Turabo, Inc., 900 F.2d

445, 454 (1st Cir. 1990), and the Board itself may eventually

order such relief as part of its final order. But here, the Board

did not show that the passage of time (some of which the

Board itself had caused), threatened the effectiveness of a bar-

gaining or rescission order. Muffley, 2008 WL 4103881, at

*12. The district court therefore did not abuse its discretion in

finding additional interim relief unnecessary. At this point, in

light of the advanced stage of this litigation, the Board itself

can best address the appropriateness of this relief in its review

of the ALJ’s decision.

V.

In summary, we hold that the Board may lawfully delegate

the power to seek § 10(j) injunctions to its General Counsel

and that the usual four-factor equitable test applies to deter-

mine if a grant of § 10(j) injunctive relief is "just and proper."

We further hold that the district court did not abuse its discre-

tion in awarding limited injunctive relief to the Board, nor in

denying the Board further injunctive relief. We therefore

affirm the judgment of the district court.

AFFIRMED