                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                                                                   F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT                                   April 19, 2006

                                                                               Charles R. Fulbruge III
                                                                                       Clerk
                                      No. 05-51544
                                    Summary Calendar


CORNELLE A. OVERSTREET, Regional Director of the Twenty-Eight
Region of the National Labor Relations Board, for and on the
behalf of the NATIONAL LABOR RELATIONS BOARD,

                                     Plaintiff-Appellant,

versus

EL PASO ELECTRIC COMPANY,

                                     Defendant-Appellee.


              Appeal from the United States District Court
                    for the Western District of Texas
                           USDC No. 3:05-CV-61



Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.


PER CURIAM:*

       Cornelle Overstreet, Regional Director of the National Labor

Relations      Board     (NLRB     or    the    “Board”),       alleges     that     El   Paso

Electric Company (EPEC), a public utility that generates and

distributes electricity in Texas and New Mexico, engaged in unfair

labor practices, as the result of an attempt by its 66 customer

service      representatives          (CSRs)      to    unionize.          EPEC     and     the



       *
         Pursuant to the 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under limited circumstances set forth in 5TH CIR. R.
47.5.4.
International Brotherhood of Electrical Workers, Local Union 960,

(“Union”) have a long history of collective bargaining with respect

to one-third of its workforce, though the CSRs were unrepresented

prior to the instant Union campaign.                        The Union began its campaign

to organize the CSRs in May 2004.                        Of particular relevance, EPEC

discharged CSR Cecilia Rodriguez on July 9, 2004, allegedly in

retaliation for her support of the Union.1                                As the result of a

secret-ballot election on August 20, 2004, the CSRs chose to have

the Union represent them in collective bargaining.                                      The Union,

however, has been unable to form a bargaining committee, allegedly

due to the CSRs’ fear of participation in Union activities.

        As a result of the labor dispute initiated in July 2004

pursuant to the National Labor Relations Act (NLRA or the “Act”),2

the ALJ recommended, inter alia, that EPEC offer reinstatement to

Rodriguez, together with a make whole remedy with regard to any

lost wages and benefits.                    The administrative matter is pending

before the Board on EPEC’s exceptions to ALJ’s decision.                                    However,

since the administrative process moves slowly, temporary injunctive

relief may be sought to preserve both the status quo and the




        1
         We caution that our review of this matter does not extend to the merits of the labor
dispute but, rather, pertains to a petition for temporary injunctive relief filed in district court on
February 25, 2005.
        2
         29 U.S.C. §§ 151-169. The Union filed a complaint with the NLRB on July 14, 2004,
and the Regional Director issued the complaint on November 19, 2004.

                                                    2
Board’s remedial power.3                Consequently, this appeal arises out of

the District Court’s final order, granting, in part, and denying,

in part, a petition for temporary injunctive relief pursuant to 29

U.S.C. § 160(j) (“10(j)”).

       A District Court should grant a request for § 10(j) interim

equitable relief only when (1) there is reasonable cause to believe

that the alleged unfair labor practices have occurred4 and (2) the

requested injunctive relief is “just and proper.”5                                The District

Court granted injunctive relief, ordering EPEC (1) to cease and

desist all of the alleged unlawful conduct (including discharging

and threatening to discharge employees if they engage in Union

activities),          (2)    to   bargain       with    the     Union,      (3)    to    restore

conditions of employment as they existed prior to the pronouncement

of new rules, (4) and to rescind written warnings issued to another

employee.

       However,        the     District      Court      declined       to    order      EPEC       to

reinstate former employee Rodriguez for two reasons.                                First, the

District Court concluded that the factual origin of employee fear

concerning         termination,        if    involved      in    Union      activities,        was


       3
           Boire v. Pilot Freight Carriers, Inc., 512 F.2d 1185, 1188 (5th Cir. 1975) (affirming
both the district court’s injunction precluding employer from further violating the Act and the
district court’s refusal to issue a bargaining order or to order the reinstatement of discharged
employees).
       4
          Both the ALJ and the District Court found reasonable cause to believe that unfair labor
practices had occurred, and this finding is not disputed on appeal.
       5
           Pilot Freight Carriers, 512 F.2d at 1188-89, 1192 (citing 29 U.S.C. § 160(j)).

                                                 3
indiscernible,          possibly       attributable          to   either     the     firing      of

Rodriguez or to Union representative statements spreading fear of

further        reprisals.6            Second,     the       District     Court      relied       on

Overstreet’s seven-month delay in raising the issue of Rodriguez’s

discharge, holding that reinstating Rodriguez would not now alter

the ability of the Union to operate.7                       The District Court concluded

by stating its aversion to “short-circuiting Board procedure.”8

       We have given the shorthand label of “equitable necessity” to

the second prong of this bipartite analysis.9                            “Section 10(j) is

itself an extraordinary remedy to be used by the Board only when,

in   its      discretion,        an    employer        or    union    has    committed        such

egregious unfair labor practices that any final order of the Board

will be meaningless or so devoid of force that the remedial




       6
          Inappropriate union conduct, warranting a denial of injunctive relief, includes “spreading
rumors or sensationalizing wholly unsubstantiated charges against a company.” See Arlook v. S.
Lichtenberg & Co., Inc., 952 F.2d 367, 374 (11th Cir. 1992) (applying Fifth Circuit precedent,
including Pilot Freight Carriers, 512 F.2d 1185).
       7
           “Although the time span between commission of the alleged unfair labor practices and
filing for § 10(j) sanctions is not determinative of whether relief should be granted, it is some
evidence that the detrimental effects of the discharge have already taken their toll on the
organizational drive. It is questionable whether an order of reinstatement would be any more
effective than a final Board order at this point.” Pilot Freight Carriers, 512 F.2d at 1193
(holding that the district court did not abuse its discretion in finding a three- month delay
significant evidence in opposition to injunctive relief).
       8
        “We believe that measures to short circuit the NLRB’s processes should be sparingly
employed.” Pilot Freight Carriers, 512 F.2d at 1192.
       9
           Pilot Freight Carriers, 512 F.2d at 1192.

                                                 4
purposes of the Act will be frustrated.”10                                Reinstatement of

unlawfully          discharged       employees       is    “generally        left   to   the

administrative expertise of the Board.”11                      We review the denial of

injunctive relief for abuse of discretion.12                             A district court

abuses its discretion when it misconstrues its proper role, ignores

or misunderstands the relevant evidence, and bases its decision

upon considerations having little factual support.13                          The District

Court’s           factual    findings       underlying        the       determinations    of

reasonable cause and equitable necessity will not be disturbed

unless clearly erroneous.14

       Overstreet relies primarily on Arlook v. S. Lichtenberg & Co.,

Inc.,15 for the proposition that the District Court clearly erred

in its factual determinations and abused its discretion in refusing

to order the reinstatement of Rodriguez.                         As in Arlook, several

CSRs testified that they fear for their jobs and fear active

participation          in   Union     activities       due    to       possible   reprisals.

However, other evidence demonstrates that the Union publicized



       10
            Id.
       11
            Id.
       12
            Id.
       13
            See Pullum v. Greene, 396 F.2d 251, 256 (5th Cir. 1968).
       14
         Boire v. International Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, 479 F.2d 778, 793 (5th Cir. 1073).
       15
            952 F.2d 367.

                                                5
Rodriguez’s         firing      and,     in    so      doing,     inculcated         the    air     of

intimidation.16             Overstreet         argues      that     the     Union’s        warnings

constituted responsible advice, made after the CSRs expressed their

concerns to the Union. Though this constitutes a plausible reading

of the facts at issue in the instant case, we are not persuaded

that the District Court clearly erred in its assessment.

       Likewise, as noted in Arlook, any delay in prosecuting the §

10(j) petition is not dispositive,17 and the facts might fairly be

interpreted in favor of the present necessity for relief, both to

empower the employees and to rectify the ongoing reticence to

openly support the Union.                      In addition to the other measures

ordered by the District Court, Rodriguez’s reinstatement might

possibly help allay the alleged trepidation.                              Again, however, we

are    not     convinced        that     the     District       Court      clearly       erred      in

determining that the elapsed time allowed the detrimental effect of



       16
            These facts distinguish the case from Arlook, in which the Eleventh Circuit stated,
“there was no evidence submitted to the district court which would permit such a finding.” 952
F.2d at 374 (reversing the district court’s refusal to issue an injunction because the district court
erroneously “believed that the Union was as responsible for the “chilling” of organizational
activities as the Company”).
       17
           Overstreet cites numerous extra-jurisdictional cases in which the delay did not impede
injunctive relief: Sharp v. Webco Indus., Inc., 225 F.3d 1130, 1136 (10th Cir. 2000) (finding a
seven-month delay no bar to injunction); Pascarell v. Vibra Screw, 904 F.2d 874, 881-882 (3d
Cir. 1990) (finding an eight-month delay no bar to injunction and stating “[t]o require the
[Regional Director] to sacrifice thorough evaluation for speed would dissipate the [Regional
Director’s] expertise, and dilute the statutory deference principle”); Maram v. Universifdad
Interamericana de Puerto Rico, 722 F.2d 953, 960 (1st Cir. 1983) (finding a four-month delay no
bar to injunction); Hirsch v. Dorsey Trailers, 147 F.3d 243, 248-49 (3d Cir. 1998) (finding a 14-
month delay no bar to injunction).

                                                   6
the discharge to be fully realized—with no lingering threat of

additional harm now warranting injunctive relief.18 Thus, we cannot

conclude that the District Court abused its discretion in refusing

to reinstate Rodriguez, ultimately differing to the providence of

the Board.

       AFFIRMED.




       18
           We do note, however, that the District Court did order EPEC into collective bargaining
with the Union yet, at the same time, did not foster the best possible environment in which such
negotiations might prosper. The Union has allegedly been unable to form a bargaining committee
due to employee reluctance to participate. We will not, however, substitute our judgment for that
of the District Court, as it was unconvinced that Rodriguez’s reinstatement would alter employee
participation in Union proceedings or that the Union did not have a hand in its own
ineffectiveness.

                                               7
