
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1266                             EFRAIN RIVERA-VEGA, ET AL.,                               Plaintiffs - Appellees,                                          v.                                CONAGRA, INC., ET AL.,                               Defendants - Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Daniel R. Dom nguez, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                _____________________               Roger J.  Miller, with whom McGrath, North,  Mullin & Kratz,               ________________            ________________________________          P.C., Angel Mu oz-Noya and Lespier & Mu oz-Noya were on brief for          ____  ________________     ____________________          appellants.               Robert Tendrich, Attorney,  National Labor Relations  Board,               _______________          with  whom Frederick  L. Feinstein,  General Counsel,  Mary Joyce                     _______________________                     __________          Carlson,  Deputy  General  Counsel,  Barry  J.   Kearney,  Acting          _______                              ___________________          Associate General  Counsel, Ellen  A. Farrell,  Assistant General                                      _________________          Counsel,  and    Corinna  L. Metcalf,  Deputy  Assistant  General                           ___________________          Counsel,  National  Labor  Relations  Board, were  on  brief  for          appellees.                                 ____________________                                  November 21, 1995                                 ____________________                    TORRUELLA,  Chief  Judge.    The  respondent  companies                    TORRUELLA,  Chief  Judge.                                ____________          appeal  an  Order  of   the  district  court  granting  temporary          injunctive relief to the Regional Director of the  National Labor          Relations Board  under    10(j) of  the National Labor  Relations          Act.  The district  court found reasonable cause to  believe that          the respondents  violated their duty to bargain in  good faith by          refusing  to  provide  the   bargaining  representative  of   its          employees   with   requested   financial   documents.       Based          substantially  on this  violation,  the district  court issued  a          preliminary injunction.  Finding neither clear error nor abuse of          discretion, we affirm.                                          I.                                          I.                                      BACKGROUND                                      BACKGROUND                                      __________                    Molinos de Puerto Rico, Inc. ("MPR") is  a wholly owned          subsidiary of  ConAgra, Inc. (collectively,  the "respondents").1          MPR maintains three production facilities in Puerto Rico where it          mills,  sells and distributes wheat, corn flour, and animal feed.          In June  1993, Congreso  de Uniones  Industriales de  Puerto Rico          ("the union") and  the respondents began  negotiations for a  new          collective  bargaining agreement, covering unit employees at MPR,          to replace  an existing agreement, which  was nearing expiration.                                        ____________________          1  The district court found reasonable cause to believe that  the          two corporate entities  are "joint employers"  in the context  of          labor relations.  As discussed infra, this finding is not clearly                                         _____          erroneous and is,  accordingly, affirmed.  We  therefore refer to          the  two companies jointly as  the respondents.   In addition, we          note that the district court's finding of joint employers applies          to ConAgra, Inc., and/or Conagra Grain Processing Companies, Inc.          For convenience sake only, we refer simply to "ConAgra."                                            -2-          The  parties soon  became involved  in a  dispute over  wages and          benefits  -- respondents wanted to cut them, and the union sought          increases.    On several  occasions,  the  union requested  MPR's          audited financial statements  for the past five years to evaluate          respondent's bargaining position.  Respondents repeatedly refused          to provide  the requested information,  and after four  months of          bargaining  and 18  bargaining sessions,  declared an  impasse on          October  28, 1993.  On October 29, respondents informed the union          that forty  employees would  be  laid off  on November  1st.   On          November 1st, respondents locked  out employees reporting to work          at MPR.   Respondents subsequently hired  replacement workers and          continued operations.2                    The union  filed an  unfair labor practice  charge with          the National Labor Relations Board (the "NLRB").  The NLRB issued          an  unfair labor  practice  complaint on  March  25, 1994,  which          charged  that the  respondents, as  joint employers,  violated             8(a)(1), (3) and  (5) of  the National Labor  Relations Act  (the          "NLRA"), 29 U.S.C.     158(a)(1),(3), by, inter  alia, failing to                                                    _____  ____          bargain in good  faith when it refused to provide  the union with                                        ____________________          2  Respondents  argued to the district court that the lockout was          implemented  in lieu of the  lay-off, and that  the lay-off never          occurred.    The district  court  appears to  have  rejected this          argument:  "The problem with this theory  is that at no time have          Respondents stated to the Union that the  lay-off contemplated in          the  implementation  of their  final  offer has  been  set aside.          Thus,  the number of employees  in the unit  remains currently at          minus  forty  employees."   We find  the  record unclear  on this          question.  Because  resolution of this  issue is unnecessary  for          purposes  of  our  decision,  we  consider  only  the  fact  that          respondents announced the lay-offs,  and not whether the lay-offs          were actually implemented.                                         -3-          the  requested financial  information, unilaterally  changing the          terms and  conditions of  employment before impasse  was reached,          unlawfully laying  off 40 employees,  and imposing a  lockout and          replacing employees with temporary employees to compel acceptance          of its bargaining position.  An administrative  law judge ("ALJ")          conducted a  hearing on the matter  from May 9 to 13,  1994.3  On          June  10,  1994, the  NLRB petitioned  the  district court  for a          temporary  injunction pursuant to  section 10(j) of  the NLRA, 29          U.S.C.   160(j).                    After   a   hearing,  the   district  court   issued  a          comprehensive and  detailed opinion in which  it found reasonable          cause to  believe, inter alia,  that:   (1) respondents  violated                             _____ ____             8(a)(1) and (5) by refusing to provide the requested financial          information  to  the  union;  (2)  the  refusal  to  furnish  the          financial  statements precluded  valid  impasse; (3)  respondents          violated   8(a)(5) by making unilateral changes  in the terms and          conditions of employment  when no valid impasse existed;  and (4)          respondents violated    8(a)(3) and (1) by locking out employees,          and using replacements, in  furtherance of its tainted bargaining          position.   The court  further concluded  that the  standards for          issuance  of a  preliminary  injunction were  met, and  that such          relief  was just  and proper  to preserve  the NLRB's  ability to          provide meaningful relief in the underlying unfair labor practice                                        ____________________          3   The ALJ  issued a decision on  June 13, 1995.   The ALJ found          that respondents  committed various unfair labor  practices, many          of which  are relevant to  the issues  in this appeal.   We  take          judicial notice of the ALJ's decision.                                             -4-          action.   Finally,  the court found  reasonable cause  to believe          that  MPR and ConAgra, Inc., are joint employers for the purposes          of labor relations.                    The  district  court  issued  a  temporary  injunction,          pending  a final  resolution  by the  NLRB  of the  unfair  labor          practice action,  directing the  employer, upon request,  to: (1)          meet and bargain with  the union; (2) restore  working conditions          which  existed prior to October 28, 1993, and maintain them until          the parties  bargain in good faith to  an agreement or an impasse          on  the  changes;  (3)  provide  the  union  with  all  requested          information necessary and relevant for collective bargaining; and          (4) reinstate  locked out or terminated  employees.  Respondents'          motion for a stay pending appeal was denied by the district court          on  March 6, 1995,  and subsequently by  this court  on March 20,          1995.                                         II.                                         II.                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                                  __________________                    Section 10(j) of the NLRA  authorizes the NLRB to seek,          and the United  States district courts  to grant, interim  relief          pending  the NLRB's resolution of unfair labor practices.  See 29                                                                     ___          U.S.C. 160(j).4   In considering  a petition  for interim  relief                                        ____________________          4  Section 10(j) provides:                      The Board shall have power, upon issuance                      of a complaint  as provided in subsection                      (b) of  this  section charging  that  any                      person  has engaged in  or is engaging in                      an unfair labor practice, to petition any                      district court of the United States . . .                      for   appropriate  temporary   relief  or                                         -5-          under    10(j), a  district court must  limit its inquiry  to (1)          whether the NLRB has shown "reasonable cause" to believe that the          employer has  committed the  unfair labor practices  alleged, and          (2) whether injunctive relief  is "just and proper."   See Pye v.                                                                 ___ ___          Sullivan  Bros.,  38  F.3d  58, 63  (1st  Cir.  1994) (collecting          _______________          cases).   In  determining whether  the NLRB has  shown reasonable          cause, the district court does not decide whether an unfair labor          practice  actually  occurred;  rather,  its role  is  limited  to          determining only whether the NLRB's position is "fairly supported          by  the evidence."    Id. (quoting  Asseo  v. Centro  M dico  del                                __            _____     ___________________          Turabo, 900 F.2d 445,  450 (1st Cir. 1990)).  The  district court          ______          does  not resolve contested issues of  fact, deferring instead to          the NLRB's version of the facts if they are "within  the range of          rationality."    Maram  v. Universidad  Interamericana  de Puerto                           _____     ______________________________________          Rico, Inc.,  722 F.2d 953,  958 (1st Cir.  1983).  We  review the          __________          district court's conclusion that reasonable cause exists only for          clear error, and  examine its decision to grant  equitable relief          only  for abuse  of discretion.   Sullivan Bros., 38  F.3d at 63;                                            ______________          Centro M dico del Turabo, 900 F.2d at 450.          ________________________                                         III.                                         III.                                      DISCUSSION                                      DISCUSSION                                      __________                    A.  Duty to Disclose Financial Information                    A.  Duty to Disclose Financial Information                        ______________________________________                                        ____________________                      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.                                         -6-                    Sections  8(a)(5) and (d) of the NLRA make it an unfair          labor practice for an employer to refuse to bargain in good faith          with its employees' representative.  29 U.S.C.    158(a)(5), (d).          One  element of  the duty to  bargain in  good faith  is that the          employer must,  upon request, supply  relevant information needed          by the  union "for the  proper performance of  its duties  as the          employees'  bargaining representative."   Detroit  Edison  Co. v.                                                    ____________________          NLRB, 440  U.S. 301, 303  (1979); NLRB  v. Acme Indus.,  385 U.S.          ____                              ____     ___________          432, 435-36 (1967); Soule Glass and Glazing Co. v. NLRB, 652 F.2d                              ___________________________    ____          1055,  1092 (1st  Cir. 1981).   The  purpose of  this rule  is to          "enable the  [union] to understand and  intelligently discuss the          issues  raised in  bargaining."   Soule Glass,  652 F.2d  at 1092                                            ___________          (quoting San Diego  Newspaper Guild  v. NLRB, 548  F.2d 863,  866                   __________________________     ____          (9th Cir.  1977)).   Information  relating to  wages, hours,  and          other  terms  and  conditions   of  employment  is  presumptively          relevant and necessary for the union  to perform its obligations.          Teleprompter  Corp. v. NLRB, 570 F.2d  4, 8 (1st Cir. 1977); F.A.          ___________________    ____                                  ____          Bartlett Tree Expert Co., Inc., 1995 WL 238413, *2 (NLRB).          ______________________________                    No such  presumption exists with  respect to  financial          data.  Because of  the sensitive nature of a  company's financial          data,  the  general rule  is that  such  information need  not be          disclosed  unless the  bargaining  representative  first makes  a          showing that "it is specially  relevant to the bargaining  taking          place."    Teleprompter  Corp.,  570  F.2d  at  8  (citing  Int'l                     ___________________                              _____          Woodworkers v. NLRB, 263 F.2d 483 (D.C. Cir. 1959) (Burger, J.)).          ___________    ____          If  the employer itself puts profitability into issue by claiming                                         -7-          an  inability  to pay  an increase  in  wages, however,  then the          financial information is presumptively relevant to the bargaining          process,  and  the  employer  is  required  to  substantiate  its          economic  condition.  NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152-                                ____    _______________          53 (1955);  Teleprompter Corp. v. NLRB,  570 F.2d 4, 7  (1st Cir.                      __________________    ____          1977).   The Supreme Court  has explained the  rationale for this          rule as follows:                      Good    faith   bargaining    necessarily                      requires  that  claims  made   by  either                      bargainer should be  honest claims.  This                      is  true about  an asserted  inability to                      pay  an increase  in wages.   If  such an                      argument is important  enough to  present                      in the give and take of bargaining, it is                      important  enough to require some sort of                      proof of its accuracy.          Truitt Mfg., 351 U.S. at 152-53.5            ___________                    Circuit   courts   interpreting   Truitt    have   long                                                      ______          distinguished  between  cases  in  which an  employer  claims  an          inability to pay the  requested wage increase and those  in which          the employer  maintains that  complying with the  union's request          would place it at a competitive disadvantage, ordering disclosure          in the former but denying  it in the latter.  See, e.g.,  NLRB v.                                                        ___  ____   ____          Harvstone Mfg.  Co., 785 F.2d,  575-89 (7th Cir.),  cert. denied,          ___________________                                 ____________          479  U.S. 821 (1986); Buffalo Concrete,  276 N.L.R.B. 839 (1985),                                ________________          enfd.,  803 F.2d 1333 (4th Cir. 1986).   In two recent cases, the          _____                                        ____________________          5    The court  also stressed  that  the right  to  disclosure in          inability-to-pay cases was not automatic: "Each case must turn on          its particular facts.  The inquiry must always  be whether or not          under  the circumstances  of  the particular  case the  statutory          obligation to bargain in good faith has been met."  Id. at 153-54                                                              __          (footnote omitted).                                         -8-          NLRB  recognized, and  elaborated  upon the  parameters of,  this          dichotomy.                    In Nielsen Lithographing  Co., 305 N.L.R.B. 697,  enfd.                       __________________________                     _____          sub nom Graphic  Communications Int'l Union,  Local 508 v.  NLRB,          _______ _______________________________________________     ____          977 F.2d 1168 (7th Cir. 1992), the NLRB held that a mere claim of          competitive disadvantage  does not compel an employer to open its          financial records to a union.  The NLRB explained:                         The  employer  who  claims  a  present                      inability    to  pay,  or  a  prospective                      inability  to pay  during the  life of  a                      contract  being  negotiated  is  claiming                      essentially  that  it  cannot  pay.    By                      contrast,  the  employer who  claims only                      economic difficulties  or business losses                      or  the prospect  of  layoffs  is  simply                      saying that it does not want to pay.                         We  do not say that claims of economic                      hardship  or  business   losses  or   the                      prospect of layoffs can never amount to a                      claim of inability to pay.   Depending on                      the   facts   and   circumstances  of   a                      particular   case,   the   evidence   may                      establish that the employer  is asserting                      that the economic problems have led to an                      inability to pay or will do so during the                      life  of  the  contract being  negotiated                      . . . .  The distinction has  always been                      between claims of 'cannot' and will not."          Nielsen, 305 N.L.R.B. at 701.  Thus,  under Nielsen,  an employer          _______                                     _______          must disclose financial information to the  union if the employer          has asserted that it "cannot pay" wage increases, but need not do          so if it has asserted only that it "will not pay" wage increases.                    In The Shell Company, 313 N.L.R.B. 133 (1993), 1993  WL                       _________________          491815,  the NLRB made explicit  what was implicit  in Nielsen --                                                                 _______          namely,  that the critical inquiry in  the "cannot pay"/"will not                                         -9-          pay" distinction  is the  substance of the  employer's bargaining                                    _________          position, not the formal words used by the employer.                    In Shell, the employer consistently stated that "it was                       _____          not pleading poverty or inability to pay in the negotiations, but          was  simply  adopting a  firm position  in  order to  become more          competitive in the short run and in the future."  Id. at *6.  The                                                            __          NLRB nevertheless concluded:                      Although   the   [company]  referred   to                      economic disadvantages it had in relation                      to other competitors, . . . the testimony                      reveals  that the  essential core  of the                      [company's]   bargaining  posture   as  a                      whole,  as expressed  to  the Union,  was                      grounded  in  assertions  amounting to  a                      claim  that  it  could  not  economically                      afford  the most  recent contract  at its                      Airport operation, that it was faced with                      a  present  threat  to   that  operations                      survival, and that,  therefore, it was at                      present unable  to pay those terms in the                      successor contract.          Id.  at *1.   See  also  New York  Printing  Pressmen and  Offset          __            _________  ________________________________________          Workers Union  No. 51 v. NLRB,  538 F.2d 496, 500  (2d Cir. 1976)          _____________________    ____          ("So long as the Employer's refusal reasonably interpreted is the          result  of  financial inability  to  meet  the employees'  demand          rather than  simple unwillingness to do so, the exact formulation          used by the Employer in conveying this message is immaterial.").                     The facts upon which the NLRB relied in Shell were that                                                            _____          the   employer's  bargaining   representative   told  the   union          negotiator  during negotiations for the new collective bargaining          agreement that  (1) economic conditions had  affected the company          "very badly,  very seriously";  (2) present circumstances  at the          company's  Airport  were  "bad,"   "critical"  and  a  matter  of                                         -10-          "survival";  and (3) the company was losing business, had lost an          important customer,  and was  facing serious regulatory  and cost          problems.  He also said: "we are telling you this because we need          your  help,  your assistance,  because  of this  condition."   In          addition,  the  NLRB  found  it  significant  that  the  employer          expressly referred to steps  it had already taken to  address the          threats to  its survival; namely, that it had put a hiring freeze          on  all management  and  employee positions,  and implemented  an          early retirement plan.  Id.                                  __                    Based on these statements, the ALJ concluded:                         The Company's situation at the Airport                      was  continually described  as "critical"                      and  a matter  of  "survival."   Critical                      certainly denotes a degree of  urgency or                      crisis,  and  when  used  with  survival,                      denotes a situation in medical terms that                      would indicate the patient is in imminent                      danger of  dying, or  in the case  of the                      Airport  operation, closing  down.   I do                      not think a reasonable person  could hear                      Respondent's representatives describe the                      airport situation as  critical and one of                      survival,  and  believe  that  they  were                      speaking of some  event that might  occur                      at some point three  years or more in the                      future.          Id. at *31.          __                    The district court found  the instant action similar to          Shell.     The   court  concluded   that   "[w]hile   Respondents          _____          continuously reiterated  that they needed  to remain  competitive          and denied claiming inability to pay, the 'essential core' of its          bargaining posture was  in effect  that it could  not afford  the          terms  of the successor contract."  The district court based this          conclusion  upon the  substance  of the  message communicated  by                                         -11-          respondents  to the  union  over the  course  of the  four  month          bargaining period.   In particular, the district  court noted the          following allegations by the NLRB.                      During the first bargaining session, the negotiator for          respondents spoke  of the difficult situation  facing the company          and  stated "if  we  don't take  immediate  measures there  is  a          probability that we won't  be here in the future."   Respondents'          negotiator  also suggested  that ConAgra,  Inc., was  considering          closing  the mill in Puerto  Rico and bringing  in flour directly          from the  United States.   In addition,  respondents' negotiators          made the  following statements  during the course  of bargaining:          (1) "The situation is a serious one and fragile."; (2) "If we are          not  competitive we cannot survive.";  (3) "Things like this [the          need  to eliminate the  granting of a soap  bar to employees] are          what  makes us not competitive vis- -vis the other and could make          us have  to close shop because  we cannot compete."; and  (4) "We          see the  situation as quite  risky because of  our ability  to be          competitive."  The  court also found it  significant that, during          negotiations, respondents told the union that it was necessary to          significantly reduce  the number  of employees,  and then,  a day          after it declared  impasse, told the union that it had decided to          lay-off forty employees (almost  30% of the unit) because  of its          economic position.                       Based on the  foregoing, the district court  determined          that  the NLRB  had shown  reasonable cause  to believe  that the          employer had committed an unfair labor practice by not disclosing                                         -12-          the requested  financial information.   As noted  previously, the          district court's role in this matter was not to determine whether          an  unfair labor  practice  actually occurred,  but to  determine          whether  the   NLRB's  position  is  "fairly   supported  by  the          evidence."  Sullivan Bros., 38 F.3d at 63 (quoting Centro M dico,                      ______________                         _____________          900 F.2d  at 450).  On  this record, we cannot  conclude that the          district court's conclusion was clearly erroneous.                    Moreover,  we  think  our  conclusion,   reached  after          independently reviewing the record, is confirmed by the fact that          the ALJ,  who held  a hearing  and took  evidence  on the  NLRB's          allegations,  concluded that the  respondents violated    8(a)(5)          and  (1)  by refusing  to provide  the  union with  the requested          financial  information.   Specifically,  the ALJ  found that  the          facts of the  instant case  "fall closer to  Shell than  Nielsen,                                                       _____       _______          thereby bringing it 'within the gravitational field of Truitt.'"                                                                 ______                    Respondents'  most compelling  argument  on  appeal  is          that,   during   the   bargaining   process,   their  negotiators          consistently used  the phrase  "long term" when  discussing MPR's          prospects  for survival.   The difficulty  with this  argument is          that the proposed  agreement under negotiations was  for a period          of five  years.  While it  might be argued that  the phrase "long          term"  implies a time more than five  years hence, it can just as          persuasively be argued that to most workers -- as opposed to, for          example, a corporate executive in charge of strategic planning --          "long  term"  suggests  next year,  the  year  after,  etc.   The          question  under Neilsen and Shell is whether the "essential core"                          _______     _____                                         -13-          of the employer's  bargaining position  amounts to a  claim of  a          present  inability to pay, or  of a prospective  inability to pay                                     ______________________________________          during the life  of a  contract being negotiated.   Neilsen,  305          ________________________________________________    _______          N.L.R.B.  at 701; Shell, 1993 WL 491815,  at *1-2.  We cannot say                            _____          that  the district court's  conclusion in this  regard is clearly          erroneous.   See Shell, 1993  WL 491815, *31  ("I do not  think a                       ___ _____          reasonable   person   could  hear   Respondent's  representatives          describe the airport  situation as critical and one  of survival,          and  believe that  they were  speaking of  some event  that might          occur at some point three years or more in the future.").6                    B.  Impasse                    B.  Impasse                        _______                    An employer violates    8(a)(1) and (5) of the NLRA by                                                                                 unilaterally  changing  a condition  of  employment  that is  the          subject of negotiations, or refusing to negotiate  on a mandatory          bargaining topic.  NLRB v. Katz,  369 U.S. 736, 743 (1962).  "The                             ____    ____          principle  exception to  this rule  occurs when  the negotiations          reach  an impasse: when impasse  occurs, the employer  is free to                                        ____________________          6  Pursuant to the district  court order, the parties have agreed          to  a confidentiality  agreement  with respect  to the  financial          information.  This agreement moots many of respondents' arguments          with respect to the  financial information.  Moreover,  we reject          respondents' contention  that it was excused  from disclosing the          information during  negotiations  because the  union  resisted  a          confidentiality agreement.   The record as a whole indicates that          respondents' willingness to disclose the information, subject  to          a confidentiality agreement, was tied to its  insistence that the          union first  demonstrate the relevancy of the  documents, and its          rejection  of  the union's  assertion  that  the information  was          relevant  to substantiate  respondents'  assertion  that  it  was          unable  to pay the increased wages.   Thus, even if the union had          agreed  to a  confidentiality agreement,  respondents' would  not          have disclosed  the information  because it rejected  the union's          relevancy showing.                                                   -14-          implement changes in employment terms unilaterally so long as the          changes  have  been  previously   offered  to  the  union  during          bargaining."   Bolton-Emerson, Inc. v.  NLRB, 899  F.2d 104,  108                         ____________________     ____          (1st Cir. 1990) (quoting  Huck Mfg. v. NLRB, 693  F.2d 1176, 1186                                    _________    ____          (5th  Cir.  1982)).   An impasse  exists  when, after  good faith          bargaining,  "the  parties are  deadlocked  so  that any  further          bargaining  would be futile."  Id. (citing Gulf States Mfg., Inc.                                         __          ______________________          v. NLRB, 704 F.2d 1390, 1398 (5th Cir. 1983)).               ____                    We have upheld, as  not clearly erroneous, the district          court's finding  of reasonable cause to  believe that respondents          had a duty  to disclose the requested  financial information, and          that their failure  to do so constituted a  failure to bargain in          good faith with the union in violation of   8(a)(5)  of the NLRA.          See  Truitt, 351 U.S.  at 152-53  (employer's refusal  to produce          ___  ______          financial  records  to substantiate  claim  of  inability to  pay          increased wages may support finding of failure to bargain in good          faith); Teleprompter, 570 F.2d  at 8 n.2 (noting that  Truitt has                  ____________                                   ______          become "widely  accepted" as establishing an  "automatic" rule of          disclosure in inability  to pay cases).  See also  Katz, 369 U.S.                                                   ________  ____          at 747  (rejecting contention  that a  finding of  subjective bad          faith is a prerequisite  to a conlusion that employer  violated            8(a)(5)).   The district court  found reasonable cause to believe          that  respondents' failure  to  bargain in  good faith  precluded          valid impasse from occurring.  Cf. New York Printing, 538 F.2d at                                         __  _________________          501 (there can be no genuine impasse where employer has failed to          bargain  in good faith by refusing to disclose properly requested                                         -15-          financial information); NLRB v. Palomar Corp., 465 F.2d 731,  735                                  ____    _____________          (5th  Cir.  1972) (no  valid  impasse  because, "in  refusing  to          disclose  their  financial records  to  the  Union, [respondents]          failed to bargain in good faith as required by" the NLRA).  Based          on the foregoing considerations, we conclude that this finding is          not clearly erroneous.                    C.  The Unilateral Changes in Conditions                    C.  The Unilateral Changes in Conditions                        ____________________________________                        of Employment and the Lockout                        of Employment and the Lockout                        _____________________________                    An  employer violates  its bargaining  obligation under             8(a)(1) and (5) if, without  having negotiated to impasse,  it          unilaterally  changes  its  employees'  terms  or  conditions  of          employment.   Katz, 369 U.S. at 743.   The district court in this                        ____          case  found   reasonable  cause  to  believe   that  respondents'          implemented the following  unilateral changes: alteration of  the          form of employee payment  from cash to check; refusal  to provide          employees with  contractual Thanksgiving turkey,  and the payment          of accrued  vacation time;  termination of medical  plan coverage          for locked out employees; and a lay-off of forty employees.  With          exception  of the  last question,  see infra  n.2, each  of these                                             ___ _____          findings is "fairly supported by the evidence," see Centro M dico                                                          ___ _____________          del Turabo, 900 F.2d at 450, and therefore not clearly erroneous.          __________          Because  we uphold  the  district court's  finding of  reasonable          cause  to believe that impasse did  not exist, we also uphold its          finding  of  reasonable   cause  to  believe   that  respondents'          unilateral  changes to  the  terms and  conditions of  employment          violated   8(a)(5).                                         -16-                    There is  no dispute that respondents  locked-out their          employees  and hired  replacement  workers.   The district  court          found reasonable cause to believe that the purpose of the lockout          was  to  compel  acceptance  of  respondents' tainted  bargaining          position (i.e.,  its failure  to disclose the  properly requested          financial information), and  therefore found reasonable  cause to          believe that the lockout, and use of replacements, constituted an          unfair labor practice.                    The district  court properly recognized that  a lockout          motivated by  an employer's desire to bring  economic pressure to          bear in support  of its legitimate bargaining  posture is lawful.          See  American Shipbuilding  Co.  v. NLRB,  380  U.S. 300,  312-13          ___  __________________________     ____          (1965).   The  district court  also recognized,  however,  that a          lockout with a proscribed purpose is illegal.  See id. at 313 (to                                                         ___ __          find  that lockout  violates    8(a)(3) NLRB  must find  that the          employer acted for a "proscribed purpose").                    The  disagreement  that led  to  the  lockout concerned          wages.  We have upheld the district court's finding of reasonable          cause  to  believe  that  the  sticking  point  was  respondents'          insistence that it could not pay increased wages, and its illegal          refusal to  substantiate this claim.   Thus,  the district  court          found reasonable cause to  believe that the lockout in  this case          was  motivated by  respondents'  desire to  compel acceptance  of          their  illegally  tainted  bargaining  position.    There  is  no          question  that  a lockout  under  such  circumstances violates             8(a)(3) of  the NLRA.  See, e.g.,  American Cyanamid Co. v. NLRB,                                 ___  ____   _____________________    ____                                         -17-          592 F.2d 356,  364 (7th Cir. 1979); Movers  & Wrhsemen's Ass'n v.                                              __________________________          NLRB, 550 F.2d  962, 966  (4th Cir. 1977);  NLRB v. Bagel  Bakers          ____                                        ____    _____________          Council, 434 F.2d 884,  888-89 (2d Cir.), cert. denied,  402 U.S.          _______                                   ____________          908 (1970); NLRB v. Southern Beverage Co., 423 F.2d 720 (5th Cir.                      ____    _____________________          1970).  We therefore conclude  that the district court's  finding          of reasonable cause with  respect to the lockout was  not clearly          erroneous.                    D.  Joint Employers                    D.  Joint Employers                        _______________                    The district  court found  reasonable cause  to believe          that  MPR and  ConAgra,  Inc., are  joint  employers.   "A  joint          employer relationship  exists where  two or more  employers exert          significant  control over  the  same employees  and share  or co-          determine  those matters governing essential terms and conditions          of employment."  Holyoke  Visiting Nurses Ass'n v. NLRB,  11 F.3d                           ______________________________    ____          302,  306 (1st  Cir.  1993)    (citing  Rivas  v.  Federaci n  de                                                  _____      ______________          Asociaciones Pecuarias de Puerto Rico, 929  F.3d 814, 819-20 (1st          _____________________________________          Cir. 1991)).   See also  Boire v. Greyhound Corp.,  376 U.S. 473,                         ________  _____    _______________          481 (1964); NLRB v. Browning-Ferris  Indus., Inc., 691 F.2d 1117,                      ____    _____________________________          1124 (3d Cir. 1982).                     In Holyoke  Nurses  and  Rivas,  this  court  favorably                       _______________       _____          acknowledged   a  host  of  factors  used   by  other  courts  in          determining the existence  of joint employer status.  See Holyoke                                                                ___ _______          Nurses, 11 F.3d at 306; Rivas, 929 F.2d at 820-21.  Those factors          ______                  _____          include:  supervision of  the  employees' day-to-day  activities;          authority to  hire, fire,  or discipline employees;  authority to          promulgate  work  rules,  conditions  of  employment,  and   work                                         -18-          assignments;  participation in the collective bargaining process;          ultimate power  over changes  in employer  compensation, benefits          and  overtime; and authority over  the number of  employees.  See                                                                        ___          W.W.  Granger, Inc. v. NLRB,  860 F.2d 244,  247 (7th Cir. 1988);          ___________________    ____          Clinton's Ditch Cooperative Co. v. NLRB, 778 F.2d 132, 138-39 (2d          _______________________________    ____          Cir.  1985), cert. denied, 479  U.S. 814 (1986);  Ref-Chem Co. v.                       _____ ______                         ____________          NLRB, 418 F.2d 127, 129 (5th Cir. 1969).          ____                    Whether joint  employer status exists is  essentially a          factual  question.   Holyoke Nurses, 11  F.3d at  306.   As noted                               ______________          previously,  in the  context of  a    10(j) petition  for interim          relief, the district  court does not resolve  contested issues of          fact, but instead defers  to the NLRB's  version of the facts  if          they  are "within the range of rationality."   Maram, 722 F.2d at                                                         _____          958.                      In  this case, the district  court found that  MPR is a          wholly owned subsidiary of  ConAgra, uses its logo,  holds itself          out to the public as a ConAgra enterprise, and has some directors          who also  hold positions at ConAgra.   The court  also found that          the impetus for  respondents' decision to  seek wage and  benefit          cuts   in  the  new  bargaining  session  was  a  change  in  the          organizational structure of ConAgra,  pursuant to which MPR would          be  part  of more  than sixty  companies  known as  ConAgra Grain          Processing Company, and subsequently be compared to them.                    Significantly,  the court  found  that ConAgra's  Vice-          President of  Human  Resources, Raymond  Godbout ("Godbout")  was          responsible  for the  negotiation  strategy utilized  during  the                                         -19-          bargaining sessions, and acted throughout as an advisor to  MPR's          negotiator.   Moreover,  the  court found  that Godbout  actively          participated  in the  bargaining  sessions, and  on one  occasion          stated to the union  representative: "what I would like  to do is          go back to my people  and talk with the persons at  the corporate          level . . .  .  See if we  can sharpen the pencil and  present to          you what our position is."  In addition, the court found that the          drug policy proposed during negotiations was the same policy used          by ConAgra at its other plants, and that MPR's employees have the          same  pension plan  as  that of  ConAgra  employees.   The  court          further found  that, after  the lockout,  Godbout became  the "de          facto  spokesperson" for  the  respondents, and  that  henceforth          ConAgra was  determining labor policies for  MPR through Godbout.          The court also found that, after the lockout, replacement workers          were provided and paid by ConAgra.                    Based  on these  factors,  the  court found  reasonable          cause to believe MPR and ConAgra are joint employers for purposes          of the pertinent collective bargaining negotiations.  The court's          factual  findings are  "fairly  supported by  the evidence,"  see                                                                        ___          Sullivan  Bros., 38  F.3d at  63, and  its finding  of reasonable          _______________          cause is not clearly erroneous.                    E.  The Preliminary Injunction                    E.  The Preliminary Injunction                        __________________________                    The district court properly  recognized and applied the          test for  determining whether interim relief is "just and proper"          under   10(j).  The determination of whether injunctive relief is          just  and proper hinges  upon whether the  NLRB has demonstrated:                                         -20-          (1) a likelihood of success on the merits; (2) the potential  for          irreparable injury in the absence of relief; (3) that such injury          outweighs any harm preliminary injunctive relief would inflict on          the  employer; and (4) that  preliminary relief is  in the public          interest.   Sullivan  Bros., 38  F.3d at  58 (collecting  cases).                      _______________          When, as in this case, the  interim relief sought by the NLRB "is          essentially the  final relief  sought, the likelihood  of success          should be strong."  Id. (quoting Asseo v. Pan American Grain Co.,                    ______    __           _____    ______________________          805 F.2d 23, 25 (1st Cir. 1986)).                    It  is  well settled  that  "we  scrutinize a  district          court's decision to grant or  deny a preliminary injunction under          a relatively  deferential glass."   Feinstein v.  Space Ventures,                                              _________     _______________          Inc., 989 F.2d 49,  51 (1st Cir. 1993) (quoting Independent Oil &          ____                                            _________________          Chem. Workers of Quincy, Inc.  v. Proctor & Gamble Mfg. Co.,  864          _____________________________     _________________________          F.2d  927, 929 (1st Cir.  1988)).  Unless  the district court has          made  a mistake  of law  or abused  its discretion,  we will  not          disturb  its decision.   See  Sullivan Bros.,  38 F.3d  at 63-64;                                   ___  ______________          Feinstein, 989 F.2d at 51.           _________          With  these principles  in mind, we  review the  district court's          decision that interim relief under   10(j) was just and proper.                    The district court plainly did not abuse its discretion          in finding a strong likelihood that the  NLRB will succeed on the          merits  of  its  unfair  labor   practice  claims.    The   court          meticulously  and comprehensively  applied the  appropriate legal          standards to  the NLRB's  allegations.  Respondents  challenge to          the  district  court's finding  in this  regard  is limited  to a                                         -21-          rehash of their arguments that the court clearly erred in finding          reasonable cause on  each of the alleged  unfair labor practices.          Contrary to respondents' arguments, the district court's findings          are amply supported by both the record and pertinent case law.                    The district court found the potential for  irreparable          injury  in the absence of interim relief because of the potential          effect of the large  scale employee lockout on union  support and          the union's  ability  to bargain  effectively  on behalf  of  its          employees.   The court  specifically found  that the  lockout had          already caused an  erosion in  union support.   Erosion of  union          support cannot be  remedied by  the NLRB's ultimate  order.   See                                                                        ___          Centro M dico, 900 F.2d at 454; Asseo v. Pan American Grain  Co.,          _____________                   _____    _______________________          805 F.2d 23, 26-27 (1st Cir. 1986).  Moreover, we  agree with the          district  court that the  fact that the lockout  in this case was          directed to  "the entire  work force"  increases  the chances  of          irreparable  harm.  See Maram, 722 F.2d  at 959.  In this regard,                              ___ _____          the  court  specifically  found  that  respondents'  conduct  had          already  caused many employees to  be in arrears  on their loans,          which consequently damaged  their credit.   We find  no abuse  of          discretion in the court's finding  of a potential for irreparable          harm.                    Nor  do  we find  abuse  of discretion  in  the court's          determination that the very real danger that the union would lose          support  because  of  unfair  labor practices  committed  by  the          employer,  combined  with  the   actual  financial  harm  to  the          employees,   outweighs  any   harm  which   granting  preliminary                                         -22-          injunctive relief may cause the employer.  Cf. Centro M dico, 900                                                     __  _____________          F.2d at 454.  Respondents argue that, if they are required to end          the  lockout and  reinstate  employees at  their former  wage and          benefit  levels,  their   "market  share  could well  deteriorate          further."   Respondents  stress that  this would  be particularly          harmful if the NLRB later rules in their favor.  The first answer          to  this argument  is that  we have  already upheld  the district          court's  determination that there is a strong likelihood that the          NLRB  will  not rule  in respondents'  favor.   This  finding, of          course, informs our  balancing of  the harms, and  points in  the          direction  opposite  to  that  urged  by  respondents.    Second,          respondents'  unsupported  assertions  regarding loss  of  market          share amount to nothing more than bald speculation.  Finally, our          resolution  of the first  three factors  leads to  the conclusion          that the district court  did not abuse its discretion  in finding          that the public interest  will be furthered by imposition  of the          interim  injunctive relief.   Given the high  number of employees          effected by  the lockout,  cf. Maram,  722 F.2d at  960, and  the                                     __  _____          potential that interim  relief will have  the salutary effect  of          strengthening the bargaining process, see Centro M dico, 900 F.2d                                                ___ _____________          at 455, the public interest in preliminary relief appears strong.          Contrary  to respondents'  assertions, we  do not  find  that the          length of time between the filing of charges by the union and the          NLRB's application  for interim was, under  the circumstances, so          unreasonable as to significantly  undercut the public interest in          preliminary relief.                                         -23-                                         IV.                                         IV.                                      CONCLUSION                                      CONCLUSION                                      __________                    Interim injunctive relief under    10(j) is appropriate          to  restore  the status  quo "when  the  circumstances of  a case          create a reasonable apprehension that the efficacy of the Board's                 _________________________          final order  may be  nullified, or the  administrative procedures          will  be rendered meaningless."   Centro M dico, 900  F.2d at 455                                            _____________          (quoting Angle v.  Sacks, 382  F.2d 655, 660  (10th Cir.  1967)).                   _____     _____          The  district court  did not  clearly err  in finding  reasonable          cause   to   support  the   Regional  Director's   position  that          respondents'  committed  unfair labor  practices.    Nor did  the          district court  abuse its  discretion in concluding  that interim          injunctive relief was just and proper.  The order of the district          court is therefore affirmed.  Costs to appellee.                             affirmed.                             ________                                                     -24-
