

                  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 &amp; Kratz,                                                                           
P.C., Angel Mu oz-Noya and Lespier &amp; 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  &amp; 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 &amp;                                                                           

Chem. Workers of Quincy, Inc.  v. Proctor &amp; 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-
