McKinney Ex Rel. National Labor Relations Board v. Creative Vision Resources, L.L.C.

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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